CHICAGO,      ILL. 


RECEIVED 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


RECEIVED 

JAN  1 2 1917 

Catron  &  oauuu.. 


TREATISE 


ON    THE   LAW    GOVERNING 


NUISANCES 


WITH 


PARTICULAR  REFERENCE  TO  ITS  APPLICATION  TO  MODERN  CON- 
DITIONS AND  COVERING  THE  ENTIRE  LAW  RELATING 
TO  PUBLIC  AND  PRIVATE  NUISANCES 

INCLUDING 

STATUTORY     AND     MUNICIPAL     POWERS     AND 
REMEDIES,  LEGAL  AND  EQUITABLE 


BT 
JOSEPH    A     JOYCE    AMD    HOWARD    C.    JOYCE 


ALBANY,  N.  Y.: 

MATTHEW  BENDER  &  CO. 

1906. 


\0[0io 


Copyright,  1906, 
By  Joseph  A.  Joyce  and  Howabd  C.  Joyce. 


PREFACE. 


The  question  of  Nuisances  has  always  been  a  much  litigated 
and  vexatious  one,  and  the  courts  in  recent  years,  while  litigation 
on  this  subject  has  been  increasing,  have  been  called  upon  to  ad- 
judicate in  numerous  cases  the  relative  rights  of  the  public  and 
of  individuals.  This  has  been  especially  true  in  matters  of  trade 
and  business  where  the  rights  of  the  respective  parties  must  be 
carefully  weighed  in  order  that  neither  the  public  nor  the  indi- 
vidual shall  suffer  nor  the  prosecution  of  a  legitimate  business  be 
impaired.  As  both  manufacturing  industries  and  the  population 
of  the  cities  and  towns  have  increased,  these  questions  of  relative 
rights  have  more  frequently  arisen.  As  a  natural  result  the  state 
through  its  legislative  and  municipal  bodies  has  provided,  to  a  con- 
siderable extent,  for  the  prevention  and  abatement  of  nuisances. 
The  rights  of  one  engaged  in  a  business  or  manufacturing  enter- 
prise are  fully  treated,  and  in  this  connection  are  presented  and 
discussed  the  right  of  the  legislature  and  of  municipal  bodies  to 
prevent  and  abate  nuisances  arising  therefrom.  The  power  of  the 
legislature,  also,  to  legalize  an  act  which  might  otherwise  be  a 
nuisance  or  to  declare  certain  things  to  be  nuisances  is  one  of  im- 
portance which  has  been  given  especial  attention.  The  authors 
have  also  treated  more  particularly  those  matters  which  are  of 
importance  under  the  modern  law  relating  to  this  subject.  This  has 
been  true  of  the  law  of  nuisances  affecting  highways  and  waters, 
which  have  been  fully  covered,  both  as  to  the  rights  of  the  public, 
of  the  individual,  and  of  abutting  and  riparian  owners.  One  of 
the  frequent  nuisances  also  complained  of  at  the  present  time  is 
that  caused  by  smoke,  which  has  been  exhaustively  considered 
in  its  various  aspects.  With  the  intention  that  this  work  should 
be  of  especial  value  to  the  court  and  the  profession  generally, 


in 


Peeface. 

each  chapter  has  also  been  made  complete  and  distinct  within 
itself.  General  principles  are  stated  and  specific  application  made 
thereof.  The  questions  of  rights  by  prescription,  the  various  al- 
Leged  nuisances,  such  as  noisome  smells  and  noises,  jars  and  vibra- 
tion-, nuisances  arising  from  animal  enclosures  and  other  causes, 
<>t'  remedies  in  eases  of  a  nuisance,  the  rights'to  summarily  abate, 
and  of  damages  have  been  thoroughly  examined  and  discussed. 

The  authors  have  endeavored  to  confine  themselves  strictly  to 
the  questions  connected  with  the  law  relating  to  nuisances  and  to 
present  a  work  which  treats  only  of  that  law  in  a  complete, 
thorough  and  logical  manner.  With  the  hope  that  this  treatise  will 
be  found  of  value,  it  is  respectfully  submitted  to  the  profession. 

JOSEPH  A.  JOYCE  &  HOWARD  C.  JOYCE. 
New  Yoek,  1906. 


IV 


TABLE    OK    CONTENTS 


CHAPTER  I. 

Definitions. 

Section  1.  Precise,  technical  definition  of  nuisance  impracticable. 

2.  General  definition — Nuisance. 

3.  Blackstone's  general  definition. — Nuisance. 

4.  Statutory  or  code  definitions. — Nuisance. 

5.  Public  or  common  nuisance  defined. 

6.  Hawkins'  and  Blackstone's  definitions. — Public  nuisance. 

7.  Statutory  or  code  definitions. — Public  nuisance. 

8.  Private  nuisance  defined. 

9.  Blackstone's  definition. — Private  nuisance. 

10.  Statutory  or  code  definitions. — Private  nuisance. 

11.  Nuisance  defined  with  relation  to  the  maxim  sic  utere,  etc. 

12.  Nuisance  per  se  defined. 

CHAPTER  II. 

Classification,  Nature  and  Character. 

Section  13.  Difficult  to  determine  whether  nuisance  is  public  or  private;  may 
be  both. 

14.  Extent  of  difference  between  public  and  private  nuisances. 

15.  Two  kinds  of  public  nuisances. 

16.  General  classification  and  distinction  with  relation  to  nuisances 

per  se. 

17.  Nuisance  distinguished  from  trespass. 

18.  Distinction  between  negligence  and  nuisance. 

19.  Nuisance  a  question  of  degree — Difficult  to  define  amount  of  an- 

noyance. 

20.  Injury  must  not  be  fanciful  or  imaginative. 

21.  Trifling  inconvenience  or  discomfort. 

22.  Substantial,  tangible,  material  and  appreciable  injury. 

23.  Acts  of  several  persons  may  constitute  a  nuisance. 

24.  General  nature  and  character  of  nuisance  as  affecting  remedy  or 

relief. 


Table  of  Contents. 

CHAPTER  III. 

Essentials — Fundamental  and  General  Principles. 

SECTION  25.  Fundamental  governing  principles  generally. 

26.  Property   rights   generally — Luxuries — Delicate   nature   of    prop- 

erty. 

27.  Sic  utere  tuo  ut  alienum  non  laedas. 

28.  Sic  utere,  etc.,  continued — Control  of  use  of  property. 

29.  Sic  utere,  etc.,  Maxim  to  be  applied  with  caution. 

30.  Natural  right  to  use  of  property  and  right  to  artificial  use. 

31.  Right  to  reasonably  improve  property. 

32.  Damnus  absque  injuria. 

33.  Lawful    or    unauthorized,    reasonable    or    unreasonable    use    of 

property. 

34.  Lawful    or    unauthorized,    reasonable    or    unreasonable    use    of 

property. — Continued. 

35.  Lawful    or    unauthorized,    reasonable    or    unreasonable    use    of 

property. — Conclusion. 

36.  Easements  of  light  and  air — Prospect — General  doctrine. 

37.  Doctrine  of   easements   of  light  and  air   applied  to   nuisances — 

Easements  of  view. 

38.  Rights  to  pure  and  fresh  air. 

39.  Extent  and  character  of  injury  and  damage — Generally. 

40.  Impairment  of,  or  diminution  in  value  of  property. 

41.  Depreciation  in  or  diminished  rental  value. 

42.  No  distinction  of  classes. 

43.  Rule  that   motive   or   intent   unimportant   and   exceptions   to   or 

qualifications  thereof. 

44.  Negligence — Care,  reasonable  care  or  precaution,  or  want  thereof. 

45.  Contributory    negligence — Prevention    of    injury    or    damage    by 

plaintiff. 

46.  Same  subject  continued — Qualifications  and  exceptions. 

47.  Contributory     negligence — Maintenance     of     another     nuisance — 

Other   or   additional   damage   of   same   character   by  one's   own 
acts. 

48.  Neglect  to  abate  nuisance — Omission  of  duty. 

49.  Effect  of  locating  near  existing  nuisance. 


VI 


Table  of  Contents. 

CHAPTER  IV. 

Prescriptive  Right. 

Section  50.  No  prescriptive  right  as  to  public  nuisances. 

51.  Same  subject. — Reasons  underlying  rule. 

52.  Nuisance  in  highway. 

53.  Pollution  of  streams. 

54.  Trade   or   occupation   not   a   nuisance   originally. — Effect  of  de- 

velopment of  locality. 

55.  Prescriptive  right  to  maintain  private  nuisance. 

56.  Essential  elements  of  right  by  prescription. 

57.  Same  subject. — Application  of  rule. 

58.  Delay  as  evidence  of  acquiescence. 

CHAPTER  V. 

Purprestures. 

SECTION  59.  Purprestures. — Generally. 

60.  Purpresture  distinguished  from  nuisance. 

61.  Streets,  highways,  parks,  etc. 

62.  Rights  of  riparian  owners. — Rule  at  common  law. 

63.  Title  to  land  under  navigable  waters  in  State. 

64.  Rights   of  riparian   owner   generally. — Matter   for  State   to    de- 

termine. 

65.  Right  of  riparian  owner  to  build  wharf,  etc. 

66.  Abatement  and   removal  of. 

CHAPTER  VI. 
Legalized  and  Statutory  Nuisances 

SECTION  67.  Legalized  nuisances. — Generally. 

68.  Acts  authorized  by  legislature. — English  rule. 

69.  Same  subject. — American  rule. 

70.  Same  subject. — Application  of  rule. 

71.  Same  subject. — Continued. 

72.  Rule  of  construction  of  such  statutes. 

73.  Legislative  authorization. — Nuisance  from  manner  of  doing  act. 

— Rules. 

74.  Same  subject. — Application  of  rules. 

75.  Same  subject. — Railroads. 

76.  Where  statute  permissive. — Locality  not  designated. 

77.  Mere  recognition  by  statute  of  a  business  or  occupation. 

vii 


Table  of  Contents. 

SECTION  78.  Acts  authorized  by  municipality. 

79.  Same  subject. — Continued. 

80.  Same  subject. — Limitations  on  power  of  municipality. 

81.  Statutory  nuisances  in  general. 

82.  Constitutionality  of  such  acts. 

83.  Power  of  legislature  to  declare  nuisances  illustrated. 

84.  Power  of  legislature  to  delegate  authority  to  municipality. 

CHAPTER  VII. 

Trade  ok  Business. 

SECTION  85.  Trade  or  business  generally. 

86.  Evidence  upon  question  of  nuisance. 

87.  Need  not  endanger  health. 

88.  Injury  must  be  substantial. 

89.  Duty  as  to  care  and  use  of  appliances. 

90.  Where  nuisance  can  be  avoided. 

91.  Where  nuisance  obviated  after  action  commenced. 

92.  Negligence  as  an  element. 

93.  Effect  on  persons  of  ordinary  sensibility  the  test. 

94.  Intention  does  not  affect. 

95.  Effect  of  locality. — Convenient  place. 

96.  Same  subject. — Continued. 

97.  Change  in  character  of  locality. — Coming  into  nuisance. 

98.  Change  in  locality  from  residence  to  business  or  trade. 

99.  Fact  that  business  is  lawful  is  immaterial. 

100.  Development  of  natural  resources  on  one's  land. 

101.  Trade  a  nuisance  does  not  render  building  such. 

102.  Injunction  against  proposed  business. 

103.  Injunction  against  erection  of  building  for  business  or  trade. 

104.  Nuisance   maintained    in    another   town    where    it    is    not   com- 

plained of. 

105.  Statute  enjoining  malicious  erection  of  structure  construed. 

106.  Bakery. 

107.  Blacksmith  shop. 

108.  Blasting. 

109.  Bowling  alleys. 

110.  Breweries  and  distilleries. 

111.  Brick,  lime  and  lumber  kilns. 

112.  Coke  ovens. 

113.  Cotton  gin. 

114.  Electric  light  or  power  plant. 

viii 


Table  of  Contents. 

SBCTI0N115.  Exhibitions  and  playhouses. 

116.  Fat  and  bone  boiling  establishments. 

117.  Ferries. 

118.  Fertilizer  factories. 

119.  Foundries. 

120.  Gas  works. 

121.  Ice  house. 

122.  Laundry. 

123.  Merry-go-round. 

124.  Quarries. 

125.  Shooting  gallery. 

126.  Slaughter  house. — Prima  facie  a  nuisance. 

127.  Slaughter  house. — Nuisance  by  location  or  operation. 

128.  Where    slaughter    house    originally    remote   from    habitations. — 

Subsequent  development  of  locality. 

129.  Slaughter  house  a  nuisance. — Health  need  not  be  endangered. 

130.  Slaughter  house  a  nuisance. — Defense  to  indictment  for. 

131.  Slaughter  house. — Defense  to  action  to  enjoin. 

132.  Smelting  works. 

133.  Steel  furnaces. 

134.  Undertakers. 

CHAPTER  VIII. 

Smoke,  Fumes  and  Gases. 

SECTION  135.  Smoke  as  a  nuisance. — Generally. 

136.  Right  of  individual  to  pure  air. 

137.  Elements  essential  to  render  smoke  a  nuisance. 

138.  Need  not  be  injurious  to  health. 

139.  Need  be  no  special  damage  or  pecuniary  loss. 

140.  Locality  as  an  element  fo  be  considered. 

141.  No  distinction  made  as  to  classes  of  persons. 

142.  That  others  contribute  to  nuisance  no  defense. 

143.  What   constitutes   a    nuisance  by   emitting    smoke. — Particular 

instances. 

144.  Same  subject. — Blacksmith's  shop. 

145.  Same  subject. — Brick  and  lime  kilns. 

146.  When  party  not  entitled  to  relief. 

147.  Where  business  legalized. 

148.  Action  for  removal  of  smokestack. 

149.  Constitutionality  of  legislative  act  making  smoke  a  nuisance. 

150.  Power  of  municipality  to  regulate  emission  of  smoke. 

ix 


Table  of  Contents. 

SECTION  151.  Same  subject. — Words  "dense  smoke"  construed. 

152.  Ordinance  limiting  emission  of  smoke  from  a  chimney  to  "  three 

minutes  in  any  hour  "  construed. 

153.  Ordinance   regulating  smoke  from  tug-boats. — Not  violation  of 

commerce  clause  of  constitution. 

154.  Municipal  ordinances  as  to  smoking  in  street  cars. 

155.  Sufficiency  of  notice  to  abate. — English  public  health  act. 

156.  Damages  recoverable. 

CHAPTER  IX. 

Noisome  Smells. 

Section  157.  Noisome  smells  as  a  nuisance. 

158.  When  smells  constitute  a  nuisance. — Instances. 

159.  When  not  a  public  nuisance. — Private  road. — Highway. 

160.  Causing  smells  to  arise  from  another's  land. 

161.  Though  business  lawful  smell  a  nuisance. 

162.  Injury  must  be  real. 

163.  Effect  upon  persons   of  ordinary  health   and   sensitiveness  the 

test. 

164.  That  others  contribute  to  injury  no  defense. 

165.  Effect  of  locality. 

166.  May  be  nuisance  though  not  injurious  to  health. 

167.  Question  of  reasonable  care  immaterial. 

168.  Though  smells  a  public  nuisance  individual  may  sue. 

169.  Liability  of  municipal  corporation. 

170.  Measure  of  damages. 

171.  Act  authorizing  board  of  health  to  abate  public  nuisances  con- 

strued. 

172.  Injunction  order. — How  construed. 

173.  Where  evidence  conflicting. — In  case  of  appeal. 

CHAPTER  X. 

Noises,  Jars  and  Vibrations. 

Section  174.  Noise  as  a  nuisance. — Generally. 

175.  Noises  at  unreasonable  hours. 

176.  Particular  noises  as  a  nuisance. 

177.  Noise  disturbing  religious  services. — Action  by  individuals. 

178.  Same  subject. — In  action  by  religious  corporation  or  society. 

179.  Ringing  of  bells. 

180.  Steam  whistles. 


Table  of  Contents. 

Section  181.  Anticipated  nuisance.— Erection  of  building. 

182.  Noise  must  produce  substantial  injury. 

183.  The  test  is  the  effect  upon  ordinary  persons. 

184.  Effect  of  locality. 

185.  Where  business  legalized. 

186.  Same  subject. — Location  not  designated. 

187.  Where  nuisance  can  be  avoided. 

188.  Jars  and  vibrations. 

189.  Distinction  between  nuisance  affecting  air  and  those  affecting 

land  or  structures. 

190.  Jar  and  vibrations.— Defendant  may  show  injury  due  to  other 

causes. 

191.  Damages   recoverable. 

CHAPTER  XI. 

Animals  and  Animal  Enclosures. 

Section  192.  Vicious  animals. 

193.  Diseased  animals. 

194.  Animals  at  large  on  highway. 

195.  Dog  a  nuisance  by  his  barking. 

196.  Use  of  animals  shocking  sense  of  decency. 

197.  Ordinance  as  to  animals. 

198.  Dead  animals. — Ordinance  as  to. 

199.  Dead  animal    on    railroad    right   of    way.— Contributory    negli- 

gence. 

200.  Livery  stable  not  a  nuisance  per  se. 

201.  Livery  stable.— Nuisance  from  manner  of  construction  and  con- 

ducting. 

202.  That  stable  properly  built  or  kept  no  defense. 

203.  That  location  of  stable  is  desirable  or  convenient  is  no  defense. 

204.  Private  stable  or  barn. 

205.  Proceeding  to  enjoin  erection  of  stable. 

206.  Proceeding  to  enjoin  proposed  use  of  building  as  stable. 

207.  Evidence  on  the  question  of  nuisance. — Stables. 

208.  Cattle  pens,  yards  and  piggeries. 

209.  Stock  yards  and  cattle  cars. 

210.  Construction  and  maintenance  of  stables  or  cattle  enclosures  as 

affected  by  ordinance. 

211.  Damages  recoverable. — Cattle  enclosures. 


XI 


Table  of  Contents. 

CHAPTER  XII. 
Nuisances  Affecting  Highways. 

Section  212.  Highways  in  general. 

213.  Public  property,  squares  and  lands. 

214.  Encroachments  and  nuisance  on  highways  in  general. 

215.  Words  "Permanent  Obstruction"  construed. 

216.  Highway  not  completed  or  not  lawfully  established  or  differing 

from  plans. 

217.  Liability  of  individual  creating  nuisance  in  highway. 

218.  Eight  of  individual   to  maintain  action. — Special  injury  neces- 

sary. 

219.  Same  subject. — Continued. 

220.  When    special   injury   exists. — Particular  instances. 

221.  Same  subject. — Continued. 

222.  Injury  to  access  or  egress. 

223.  Loading  and  unloading  goods. 

224.  Same  subject. — Fact  that  business  lawful  or  use  necessary  may 

be  immaterial. 

225.  Same  subject. — Application  of   rules. 

226.  Skids  or  platforms  for  loading  or  unloading  merchandise. 

227.  Exposure  of  wares  for  sale. — Storing  goods  in  highway. — Show 

cases. 

228.  Market  places. 

229.  Deposit  of  building  materials  and  earth  in  street. 

230.  Excavations. — Generally. 

231.  Vaults  and  excavations  under  sidewalks. — Coal  holes,  openings, 

etc. 

232.  Same  subject. — Effect  of  license. 

233.  Building  encroaching  on  highway. 

234.  Building  encroaching  on  highway. — Special  injury  to  individual. 

235.  Building  encroaching    on    highway. — Right    to    temporary    and 

mandatory  injunction. 

236.  Structure  obstructing  light  and  air. — Right  of  adjoining  owner. 

237.  Overhanging  eaves,  pipe  conductors,  etc. 

238.  Building  liable  to  fall  into  highway. 

239.  Fences  encroaching  on  highway. 

240.  Fences  encroaching  on  highway. — Action   by  individual. 

241.  Statutory  penalty  for  encroachments  or  obstructions. — Fences. 

242.  Use  of  highway  by  railroad. — When  legalized. 

243.  Same  subject. — Duty  in  construction  of  railroad. 


Xll 


Table  of  Contexts. 

SECTION  244.  Construction  of  Mew  York  city   subway.— Acts  authorizing  use 
of  streets  construed. 

245.  Railroads  in  parks. 

246.  Unauthorized  construction  of  railroad  in  streets. 

247.  Side  tracks  and  switches. 

248.  Cars  standing  at  crossings  or  on  streets. 

249.  Using  street  for  terminal  purposes  of  railroad.— Switching  cara, 

etc. 

250.  Railroad  abutments  and  bridges. 

251.  Accumulations    of   snow   cleared   from   street  railway   tracks.— 

Use  of  salt. 

252.  Trees  in  highway  as  a  nuisance.— Right  of  municipality  to  re- 

move. 

253.  Same  subject. — Continued. 

254.  Flag  poles. 

255.  Objects  frightening  horses. 

256.  Same  subject. — Qualifications  of  rule. 

257.  Toll  gates. 

258.  Other  particular  obstructions,  acts  or  things  as  nuisances. 

259.  Damages  recoverable. 

260.  Power  of  municipality  to  authorize  obstructions  or  nuisances. 

261.  Same  subject. — Application  of  rules. 

262.  Municipal  authority  to  declare  thing  in  highway  nuisances. 

263.  Same  subject. — Continued. 

264.  Municipal  liability. 

CHAPTER  XIII. 

Waters. 

Section  265.  Riparian  rights. — Generally. 

266.  Riparian  rights. — General  rule. 

267.  Riparian  rights. — Qualification   of   rule. — Reasonable   use. 

268.  Riparian  rights. — Ebb    and    flow    of    tide. — Reasonable    use. — 

Prior   occupation. 

269.  Riparian    rights. — Reasonable   and   unreasonable   use. — Conveni- 

ence or  necessity  as  to  locality. — Pollution  of  waters. 

270.  Riparian  rights. — Qualification  of  rule. — Mining  and   irrigation 

generally. 

271.  Riparian  rights. — Artificial  water  course. 

272.  Rights  as  to  navigable  waters. — Generally. 

273.  Obstruction  of  navigable  waters.— Generally. 

274.  Bridges. 

xiii 


Table  of  Contents. 

SECTION  275.  Docks,  wnarves,  piers  and  like  structures. 

276.  Fishing  and  fishing  nets. — Pollution  or  obstruction  of  waters. 

277.  Mines. — Pollution  of  waters. — Mining   debris  and   deposits. 

278.  Taking  of  private  property  by  polluting  water  or  overflowing 

land. — Condemnation. 

279.  Liability  of  municipal  and  quasi-municipal  or  public  bodies  gen- 

erally.— Negligence. — Officers  and  agents. 

280.  Sewers. — Generally. 

281.  Sewers  left  in  unfinished  state. 

282.  Sewers  negligently  constructed  and  operated. 

283.  Disposal  of  sewage. 

284.  Disposal  of  sewage. — Municipalities,  etc. 

285.  Same  subject  continued. 

286.  Same  subject. — Application  of  rule. 

287.  Municipal    liability. — Distinction    between    plan    and    construc- 

tion.— Maintenance  or  use. — Sewage. 

288.  English      decisions. — Public      bodies      generally. — Pollution      of 

waters. — Sewage. 

289.  Disposal  of  sewage. — Statutory  authority. — When   a    nuisance. 

290.  Disposal  of  sewage. — Statutory  authority. — When  no  nuisance. 
291-  Disposal  of  sewage. — Statutory  authority. — English  decisions. 

292.  Distinction  between  nuisances  of  necessity  in  exercise  of  statu- 

tory powers  and  those  from  secondary  causes. 

293.  Sewage. — Municipality    acquiring    land    beyond    its    limits    for 

sewage  system. 

294.  Discharging  sewage  beyond  jurisdiction. 

295.  Statutory  condition  precedent. 

296.  Sewage. — Act  creating  nuisance  absolutely  necessary  to  execute 

statutory  power. 

297.  Pollution   of   waters   by    sewage   or    otherwise. — Purifying,   dis- 

infecting and  deodorizing. 

298.  Same  subject. — English  decisions. 

299.  The   Chicago   drainage  case. — Jurisdiction  of  federal   courts. — 

Controversies  between  States. — State  and  Federal  law. — 
Power  of  Congress  to  regulate  commerce. — Nuisance  of  a 
character  not  discoverable  by  unassisted  senses. 

300.  Sewage. — Overtaxing  capacity  of  sewer  or  of  stream. — Overflow. 

301.  Sewage. — Liability  of  occupants  or  owners  of  houses  in  district. 

302.  Sewage  discharged  into  street. 

303.  Pollution  of  waters. — Manufacturing  processes. 


XIV 


Table  of  Contents. 

CHAPTER  XIV. 

Waters — Continued. 

Section  304.  Polluting  water  supply  of  city. 

305.  Ponds,  pools,  stagnant  waters. 

306.  Drains,   ditches,   channels,   canals,   etc.— Diversion  of  water.— 

Pollution. — Damages. 

307.  Same  subject  continued. 

308.  Legislature  may  act  through  own  agencies.— Creation  of  sewer- 

age  district.— Independent    source   of    pollution.— When   nui- 
sance does  and  does  not  exist. 

309.  Expert  or  scientific  evidence  as  to  pollution  and  effect  thereof. 

310.  Character  of  odors,  proportion  and  effect  of  discharge.— Degree, 

nature  and  character  of  pollution  generally. 

311.  Pollution  of  waters. — General  decisions. 

312.  Diversion  or  obstruction  of  waters. — Generally. 

313.  Overflowing,  flooding  or  casting  water  upon  land. — Generally. 

314.  Percolations. — Subterranean  waters. 

315.  Surface  waters. 

316.  Surface  waters. — Instances. 

317.  Artificial    erections.— Embankments,  etc.— Railroad  erections. 

318.  Mills,  mill  races  and  streams,  mill-sites  and  mill  owners.— Re- 

building mills. 

319.  Dams. 

320.  Dams  continued. 

321.  Dams  continued. — Back  water. 

322.  Dams  continued. — Overflow,  flooding. 

323.  Dams  continued.— Overflow  and  flooding.— Evidence. 

324.  Increasing  height  of  dam.— Whether  flash-boards  part  of  dam. 

325.  Construction  of  dam  by  municipality. 

326.  Dams. — Navigable  waters. 

327.  Restoration  of  dams. — Parol  license. 

328.  Prescription. 

329.  Damages. 

CHAPTER  XV. 

Municipal  Powers  and  Liabilities. 

SECTION  330.  Municipal  powers  generally. 

331.  Boards  of  health. 

332.  Power  of  municipality  to  declare  things  nuisances. 

333.  Same  subject  continued. 

XT 


Table  of  Contents. 

Section  334.  Same  subject. — Where  there  is  a  doubt  whether  a   thing  is  a 
nuisance. 

335.  Ordinance  must  not  discriminate. — Must  be   uniform  in  opera- 

tion. 

336.  Same    subject. — Where    ordinance    prohibits    unless    permission 

obtained. 

337.  Same    subject. — Ordinance    requiring    permit    for    processions — 

Parades,  &c. 

338.  Municipal  power  to  declare  a  cemetery  a  nuisance. 

339.  Validity  of  particular  ordinances. 

340.  Same  subject  continued. 

341.  Power  of  municipality  as  to  erection  of  structures. — Authoriza- 

tion by  legislature. 

342.  Powers  as  to  structures  or  erection  of  or  establishment  of  fire 

limits. — Want  of   legislative  authorization. 

343.  Same  subject. — Continued. 

344.  Same  subject. — Conclusion. 

345.  Municipal  powers  to  summarily  abate. — Generally. 

346.  Limitations  on  power  to  summarily  abate  or  remove. 

347.  Municipal  authorities  proceed  at  their  peril  in  summary  abate- 

ment of  nuisance. 

348.  Particular  instances  of  power  of  municipality  to  abate  nuisances. 

349.  Right  of  municipality  to  destroy  building. 

350.  Same  subject. — Where  nuisance  consists  in  use  of  building  only. 

351.  Same  subject. — Right  of  owner  of  building  to  injunction. 

352.  Property  destroyed  as  a  nuisance. — Owner  no  right  to  compen- 

sation. 

353.  Municipal  liability  for  nuisances. — Generally. 

354.  Same  subject. — Distinction  betwen  powers  ministerial  and  legis- 

lative. 

355.  Municipal  liability. — Public  works. — Particular  instances. 

356.  Same  subject. — Continued. 

357.  Liability    of    municipality   where   it   fails    to    remove   or   abate 

nuisance. 

358.  Same  subject. — Continued. 


XVI 


Table  of  Contents. 

CHAPTER  XVI. 

Remedies — Nature  and  Form  of  Remedy. 

SECTION  359.  Nature  and  form  of  remedy  generally. 

360.  Nature  and  form  of  remedy    continued. — Ancient    or    common- 

law  remedies. 

361.  Nature  and  form  of  remedy  continued. — Debt,  nuisance,  eject- 

ment, case,  trespass. 

362.  Nature  and  form  of  remedy  continued. — Statutes. 

363.  Nature  and  form  of  remedy  continued. — Law  and  equity. 

364.  Nature  and  form  of  remedy  continued. — Effect    of     prayer    for 

relief. — Election  of  remedy. 

365.  Remedy  by  indictment  and  in  equity. — Statutes. 

366.  Same  subject  continued. 

367.  Same  subject  continued. 

CHAPTER  XVII. 

Remedies  Continued — Right  to  Abate. 

Section  368.  Eight  to  abate  public  nuisances  generally. 

369.  Same  subject. — Qualifications  of  right. 

370.  Same  subject. — Necessity  of  special  injury  to  individual. 

371.  Instances  of  right  to  summarily  abate  by  individual. 

372.  Abatement  by  municipality. 

373.  Nuisances  on  public  lands. — Power  of  Congress  to  order  abate- 

ment. 

374.  Right  of  individual  to  summarily  abate  private  nuisances. 

375.  Same  subject. — When  right  may  be  exercised. 

376.  Limitations  on  right  to  abate. 

377.  Same  subject  continued. — Buildings  and  structures. 

378.  Same  subject  continued. — Other  instances. 

379.  Right  to  summarily  abate  as  affected  by  statute. 

380.  Right  not   affected  by  constitutional    provisions  for   protection 

of  property. 

381.  Cost  of  abating  nuisance. 


XV11 


Table  of  Contents. 

CHAPTER  XVIII. 

Remedies  Continued — Subject  Matter  of  Remedy. 

Section  3S2.  Dangerous  nuisances  generally. 

383.  Same  subject. — Negligence. 

384.  Dangerous     nuisances    continued. — Gunpowder,     dynamite     and 

other  explosives. 

385.  Same  subject. — Rules  continued. — Instances. 

386.  Same  subject  continued. 

387.  Dangerous  nuisances  continued. — Petrol«um,  gasoline,  naphtha, 

crude  oils,  etc. 

388.  Same  subject  continued. 

389.  Dangerous  nuisances  continued. — Spring  guns. 

390.  Baseball.— Ball  park. 

391.  Bawdy  house  or  house  of  ill-repute. 

392.  Bees. 

393.  Cemeteries,  burial  grounds. 

394.  Cooking  and  cooking  ranges. 

395.  Gambling  house. 

396.  Deposits  on  land. — Garbage,  ashes,  offensive,  etc.,  matter. 

397.  Hospitals,  pest-houses,  infectious  and  contagious  diseases. 

398.  Steam  engines  and  boilers. 

399.  Liquor  nuisance. — Civil  and  criminal  action  or  remedies. 

400.  Same  subject. 

401.  Same  subject. 

402.  Common  scold. 

403.  Fences  and  structures  generally. 

404.  Same  subject  continued. 

405.  Water  closets,  privies,  vaults  and  outhouses. 

406.  Same  subject  continued. 

407.  Dams. — Civil  and  criminal  remedies. 

408.  Private  way,  right  of  way. 

409.  Other  special  instances  of  what  is  subject  matter  of  remedy. 

410.  Same  subject  continued. 

411.  Other  special  instances  of  what  is  not  subject  matter  of  remedy ► 

412.  Same  subject  continued. 

413.  Other  special  instances  of  when  and  for  what  indictment  lies. 

414.  Same  subject  continued. 


XVlli 


Table  of  Contents. 

CHAPTER  XIX. 

Remedies  Continued — Parties,  Defenses  and  Damages. 
SUBDIVISION  I. 

Essentials  of  Jurisdiction  and  Remedy. 

SECTION  415.  Essentials  of  equitable  jurisdiction,  remedy  or  relief. 

416.  Same  subject. — Rulings  and  instances. 

417.  Whether  establishment  at  law  of  right  a  prerequisite  to  equi- 

table relief. 

418.  Same  subject. — Early  rulings  and  instances. 

419.  Prospective  or  threatened  nuisance. — Apprehended  injury. 

420.  Same  subject. — Other  statements  or  forms  of  rule. 

SUBDIVISION  II. 

Parties  Entitled  to  Remedy — Liability. 

SECTION  421.  Who  entitled  to  remedy. — Against  whom  remedy  lies. — Prelimi- 
nary statement. 

422.  Private   person   suffering   special   injury  may   sue. — Public  nui- 

sance. 

423.  Same  subject. — Other  statements  of  rule. — Cause  and  effect. 

424.  Private    injury. — Public    nuisance. — Review    of    decisions. — In- 

stances. 

425.  Same  subject. 

426.  Same  subject. 

427.  Same  subject. — Wesson  v.  Washburn. 

428.  Private  action. — Public  nuisance. — Others  similarly  affected. 

429.  Special  private  injury  must  be  shown. — Pleading. 

430.  What  essentials  must  exist  to  sustain  private   action. — Public 

nuisance. 

431.  Private  action. — Public  nuisance. — Sewage. 

432.  Private  action. — Public  nuisance. — Highways. 

433.  Private  action. — Public  nuisance. — Navigable  waters. 

434.  Private  action. — Public  nuisance. — Bridges. 

435.  Private  action. — Public  nuisance. — Wooden  walls  or  buildings. 

436.  Private  action. — Public  nuisance. — Other  instances. 

437.  State  or  public  entitled  to  remedy. — Attorney-General  or  other 

prosecuting  officer. 

438.  Same  subject. 

xix 


Table  of  Contents. 

Section  439.  Municipal  and  quasi-municipal  corporations  entitled  to  remedy. 
— English  local  authorities. 

440.  Boards  of  health  entitled  to  remedy. — Sanitary  inspector. 

441.  Aqueduct  board  entitled  to  remedy. 

442.  Corporations  entitled  to  remedy. 

443.  Land    owner    entitled    to    remedy. — Landlord. — Mortgagor. — Ri- 

parian owners. — Joinder. 

444.  Parties    entitled   to    remedy. — Necessity    of    interest    in    land. — 

Parties  in  possession. 

445.  Lessee  or  tenant  entitled  to  remedy. — Joinder. 

446.  Other  parties  generally  entitled  to  remedy. — Joinder. 

447.  Person  creating  nuisance  liable. — General  rule. 

448.  Liability  of  municipal    and   quasi-municipal    corporations. 

449.  Liability  of  officers  of  municipal,  etc.,  corporations. 

450.  Liability  of  private  corporations. 

451.  Same  subject. — Opinions  of  text-writers. 

452.  Liability  of  offiers  of  corporations. 

453.  Liability  of   owner  generally. — Instances. 

454.  Liability  of  erector  of  nuisance  and  subsequent  holders  by  pur- 

chase or  descent. — Continuance  of  nuisance. 

455.  Same   subject. — Notice  or  request  to  abate. — Creator   or   main- 

tainor of  nuisance. 

456.  Notice  or  request  to  abate,  continued. — Grantee,  etc.,  of  erector 

of  nuisance. 

457.  Notice  or  request  to  abate,  continued. 

458.  Same  subject. 

459.  Liability    for    continuing    nuisance. — Statute    of    limitations. — 

Rulings  and  instances. 

460.  Same  subject. 

461.  Liability. — Landlord  and  tenant. — Distinction  to  be  observed. 

462.  When   owner   or   landlord  liable   to   third    persons! — Rules   and 

instances. 

463.  Same  subject. — Defective,  dangerous,  etc.,  condition  of  premises. 

464.  Lessor  of  structure  or  building  for  public  entertainment  liable. 

465.  Liability  of  lessee  who  sublets. 

466.  When  owner  or  landlord  not  liable  to  third  persons — Rule3  and 

instances. 

467.  Liability  of  landlord  to  tenant. 

468.  Liability  of  tenant. 

469.  Liability  where  term  of  lease  is  nine  hundred  and  ninety-nine 

years. 

470.  Liability. — Landlord  and  tenant. — Obligation  to  repair. 

XX 


Table  of  Contents. 

Section  471.  Same  subject. — Instances. 

472.  Whether  owner,  occupant,  contractor  or  sub-contractor  liable. 

473.  Immoral,  illegal  and  unlawful  use  of  property. — Who  liable. 

474.  Liability  of  persons  jointly  and  severally  contributing. 

475.  Other  persons  who  are  and  are  not  liable. — Instances. 


SUBDIVISION   III. 

Defenses. 

Section  476.  Proximate    cause. — Acts    of    third    parties. — Other    sources    or 
causes. — Others  contributing. 

477.  Pollution  of  waters  from  other  sources. 

478.  Other  or  similar  nuisances. — Similar  acts  by  others. 

479.  Where  plaintiff  contributes  to  or  maintains  similar  nuisances. 

480.  Pollution  of  water  by  plaintiff. 

481.  Negligence. — Contributory   negligence. — Due  care. 

482.  That  water  potable  by  cattle  and  inhabitable  by  fish  no  excuse 

for  pollution. 

483.  Benefit  to  public;   balancing  conveniences. 

484.  Same  subject. 

485.  Acquiescence,   knowledge  or   failure   to   complain. — Laches. — Es- 

toppel. 

486.  Other  instances  of  defenses  generally. 

487.  Same  subject. 


SUBDIVISION   IV. 

Damages. 

Section  488.  Damages  generally. 

489.  Permanent  injury. — Depreciation   in    value. — Rule. — Instances. 

490.  Usable  value. — Diminished  rental  value. 

491.  Usable  or  rental  value  continued. — Decisions. 

492.  Usable  value — Rule  in  Bly  case. 

493.  Equity. — Jury  trial. — Discontinuance  of  nuisance  pendente  lite. 

— Rental  value. — Landlord  and  tenant. — Rule  in  Miller  case. 

494.  Damages  up  to  commencement  of  suit. 

495.  Recovery  of  entire  damages  in  one  action. 

496.  Same  subject. — Other  statements  of  rule. — Instances. 

497.  Direct  and  consequential  injury. 

XX  i 


Table  of  Contents. 

Section  498.  Nominal  damages. 

499.  Negligence. — Actual  damages. 

500.  Duty  to  lessen  damages. 

501.  Actual  damages. — Additional  damages. 

502.  Life  tenant. — Rental  value. — Additional  damages. 

503.  Punitive  damages. 

504.  Damages. — Pleading. — General  decisions. 

505.  Waiver  of  irregularities  in  taking  land  by  accepting  damages. 


XXI 1 


Ti^BLE  OF  CASES. 

(The  references  are  to  sections.) 


SEC. 

Abbott  v.  Mills,  3  Vt.  521 422 

Abendroth  v.  Manhattan  Elevated  Co.,  122  N.  Y.  1 36 

Abendroth  v.  Manhattan  R.  Co.,  7  N.  Y.  St.  Rep.  43 415 

Abrahams  v.  California  Powder  Co.,  5  N.  M.  479 386 

Abrams  v.  Sandholm,  119  Iowa,  583 399 

Aekerman  v.  New  York  &  B.  Bridge  Trustees,  10  N.  Y.  App.  Div.  22 445 

Ackerman  v.  True,  175  N.  Y.  353 233 

Acme  Fertilizer  Co.  v.  State,  34  Ind.  App.  346 450 

Adams  v.  Fletcher,  17  R.  I.  137 231 

Adams  v.  Ford,  3  Pa.  Super.  Ct.  239 331 

Adams  v.  Michael,  38  Md.   123 40,  103,  136 

Adams  v.  Modesto,  131  Cal.  501 4,  280,  329 

Adams  v.  Ohio  Falls  Car  Co.,  131  Ind.  375 40,  436 

Adams  v.  Popham,  76  N.  Y.  410 218,  320,  485 

Adams  Express  Co.  v.  Schofield,  23  Ky.  L.  Rep.  1120 472 

Adams  Hotel  Co.  v.  Cobb,  3  Ind.  Ty.  50 39,  44,  283,  497 

Advance  Elevator  &  Warehouse  Co.  v.  Eddy,  23  111.  App.  352 250 

Ahem  v.  Steele,  115  N.  Y.  203 456,  462,  468,  470 

Aiken  v.  Benedict,  39  Barb.  400 361 

Akers  v.  Marsh,  19  App.  D.  C.  28 19,  20,  24,  43 

Alabama  &  V.  G.  R.  Co.  v.  Bloom,  71  Miss.  247 222 

Alabama  Con.  Coal  &  I.  Co.  v.  Turner  (Ala.),  39  So.  603 487,  499 

Alaxander  v.  Kerr,  2  Rawle   (Pa.)   93 39,  49,  485 

Albany  Christian  Church  v.  Wilborn,  23  Ky.  Law  Rep.  1820 204 

Albee  v.  Chappaqua  Shoe  Mfg.  Co.,  62  Hun  (N.  Y. )  223 ISO 

Aldrich  v.  Howard,  8  R.  T.  246 11,  19,  201,  202,  203,  207,  422,  435 

Aldrich  v.  Howard,  7  R.  T.  87 205 

Aldrich  v.  Minneapolis,  52  Minn.   164 13,  14 

Aldrich  v.  Wetmore,  52  Minn.  164 218,  219,  222 

Aldritt  v.  Gillette-Herzog  Mfg.  Co.,  85  Minn.  206 472 

Aldworth  v.  Lynn,  153  Mass.  53 407 

xxiii 


Table  of  Cases. 

Sec. 

Alexander  v.  Stewart  Bread  Co.,  21  Pa.  Super.  Ct.  526 40,  106,  494 

Alexander  v.  Tebeau,  24  Ky.  Lew  Rep.  1305 386,  390 

Alfred's  Case,  9  Coke  57b 36 

Allegheny  v.  Zimmerman,  95  Pa.  St.  287 254 

Allen  v.  Board  of  Chosen  Freeholders,  13  N.  J.  Eq.  38 430 

Allen  v.  Smith,  70  Me.  335 405 

Allison,  Ex  parte   (Tex.) ,  90  S.  W.  870 426 

Allison  v.  Richmond,  51  Mo.  App.   133 350 

Alpers  v.  Brown,  GO  Cal.  447 198 

Amelia  Milling  Co.  v.  Tennessee  Coal,  I.  &  R.  Co.,  123  Fed.  811 484 

American  Furniture  Co.  v.  Batesville,  139  Ind.  77 84,  366 

American  Ice  Co.  v.  Catskill  Cement  Co.,  43  Misc.  R.  (N.  Y.)  221. .  .135,  143 

American  Strawboard  Co.  v.  State,  70  Ohio  St.  140 450 

Americus  v.  Mitchell.  79  Ga.  807,  809 347 

Ames  v.  Cannon  River  Mfg.  Co.,  27  Minn.  245 416 

Amos  v.  Norcross,  58  X.  J.  Eq.  256 272 

Amoskeag  Mfg.  Co.  v.  Goodall,  46  N.  H.  53 369 

Amrhein  v.  Quaker  City  Dye  Works,  192  Pa.  253 486 

Amsterdam  Knitting  Co.  v.  Dean,  162  N.  Y.  278 312 

Anderson  v.   Buckton,   1   Strange,    192 193 

Anderson  v.  Chicago,  M.  St.  P.  Ry.  Co.,  85  Minn.  337 71,  209 

Anderson  v.  Dickie,  26  How.  Pr.   (N.  Y.)    105 447,  474 

Anderson  v  Doty,   33  Hun,   160 391 

Anderson  v.  East,   117   Ind.   126 354,  358 

Anderson  v.  Wellington,  40  Kan.  173 337 

Anderson  v.   Young,    66   Hun    (N.   Y.),   240 216,  239 

Angel  v.  Pennsylvania  R.  Co.,  38  N.  J.  Eq.  58 248 

Anheuser-Busch  Brewing  Assoc,  v.  Peterson,  41  Neb.  897 382 

Ankeny  v.  Fairview  Milling  Co.,  10  Oreg.   390 416 

Ann  Arbor  R.  Co.  v.  Kinz,  68  Ohio  St.  210 18 

Anony.,    3   Atk.    750 20 

Anthony  v.  The  Inhabitants  of  Adams,  1  Mete.   (42  Mass.)    284 317 

Anthony  Shoe  Co.  v.  West  Jersey  R.  Co.,  57  N.  J.  Eq.  607 246 

Anthony  Wilkinson  Live  Stock  Co.  v.  Mcllquan    (Wyo.,   1905),  83  Pac. 

3C4.    370    213,  426 

Appeal  of  Borough  of  Butler   ( Pa. ) ,  6  Atl.  708 258 

Appeal  of  Ladies  Decorative  Art  Club   (Pa.,  1883),  13  Atl.  537 93,  174 

176,  183 

Appeal  of  McCaffrey,   105   Pa.  253 182 

Appeal  of  Pennsylvania  Lead  Co.,  96  Pa.   116 132,  158 

Appeal  of  Stewart,  56  Pa.  St.  413 246 

Appeal  of.     See  name. 

xxiv 


Table  of  Cases. 

Sec. 

Arkadelphia  v.  Clark,  52  Ark.  23 392 

Arnold  v.  Stanford,  24  Ky.  Law  R.  626 354 

Arpin  v.  Bowman,  83  Wis.  54 456 

Aschoff  v.  Evansville,  34  Ind.  App.  25 2  <"9 

Ashbrook  v.  Commonwealth,  1  Bush   (Ky.),  139 97,  166,  345,  416 

Ashby  v.  White,  2  Ld.  Raymond,  938 39 

Ashley  v.  Port  Huron,  35  Mich.  296 448 

Astor  v.  New  York  Arcade  Ry.  Co.,  3  N.  Y.  St.  R.  188 70,  422,  429,  446 

Atchison,  T.  &  S.  F.  R.  Co.  v.  Jones,  110  111.  App.  626 490,  505 

Atchison,  T.  &  S.  F.  R.  Co.  v.  Morris,  64  Kan.  411 248 

Atkinson  v.  Atlantic,  81  Ga.  625 264,  439 

Atlanta  v.  Warnock,  91  Ga.  210, 280,  285,  448 

Atlantic  v.  Holliday,  96  Ga.  546 252,  253 

Attorney-General  v.  Bank  of  Niagara,  1  Hopk.  Ch.   (N.  Y.)    354 85 

Attorney-General  v.  Birmingham,  4  Kay  &  J.  528,  6  W.  R.  811 291,  485 

Attorney-General  v.  Blount,  11  N.  C.  384 415 

Attorney-Gen'l  v.  Bradford  Navigation  Co.,  L.  R.  2  Eq.  71 477 

Attorney-General  v.  Brighton  &  Hove  Co-op.  Supply  Assn.,  69  Law  J. 

Ch.  204 212,  223,   224,  225 

Attorney-Gen'l  v.  Central  R.  Co.  of  New  Jersey,  59  Atl.  348 272 

Attorney-General  v.  Cleaver,  18  Ves.  211 85,  365,  418 

Attorney-General  v.  Clerkenwell  Vestry,  60  L.  J.  Ch.  788 291,  301 

Attorney-General  v.  Cogan   ( 1S91 ) ,  2  Q.  B.  100 439 

Attorney-General  v.  Cohoes  Co.,  6  Paige  Ch.  (N.  Y.)   133 66 

Attorney-General  v.  Cole,  70  L.  J.  Ch.  148 35 

Attorney-General    v.    Colney    Hatch    Lunatic    Asylums,    38    L.    J.    Ch. 

265 291,    296,    416,    440,  485 

Attorney-General  v.  Council  of  Birmingham,  4  Kay  &  J.  528 291,  485 

Attorney-General  v.  Evart  Booming  Co.,  34  Mich.  462 14,  60,  66 

Attorney-General  v.  Forbes,  2  Mylne  &  C.  123 59 

Attorney-General  v.  Hackney  Local  Board,  44  L.  J.  Ch.  545 291 

Attorney-General  v.  Hane,  50  Mich.  447 437 

Attorney-General  v.  Heishon,  18  N.  J.  Eq.  410 80,  417 

Attorney-General  v.  Jamaica  Pond  Aqueduct  Corp.,  133  Mass.  361 305 

413,  437 

Attorney-General  v.  Kingston-Thames  Corporation,  34  L.  J.  Ch.  481.288,  291 

Attorney-General  v.  Kingston-on-Thames  Corporation,  13  W.  R.  888 420 

Attorney-General  v.  Leeds,  L.  R.  5  Ch.  583 477 

Attorney-General  v.  Leeds  Corporation,  39  L.  J.   Ch.  711 291,  477 

Attorney-General  v.  Lonsdale,  38  L.  J.  Ch.  335 275,  414 

Attorney-General  v.  Manchester,  2  Ch.  87 397,  419 


XXV 


Table  of  Cases. 

Sec. 
Attorney-General  v.  Metropolitan   Board  of   Public  Works,    1   Hem.   & 

M.  298    73'  74 

Attorney-General  v.  Metropolitan  Board  of  Works,  11  W.  R.  820 288 

292,  300 

Attorney-General  v.  Metropolitan  R.  Co.  (C.  A.,  1894),  1  Q.  B.  384 147 

Attorney-General  v.  New  Jersey  R.  &  T.  Co.,  3  N.  J.  Eq 136 

Attorney-General  Eason  v.  Perkins,  17  U.  C.  38 318 

Attorney-General  v.  Paterson.     See  Grey  (Simmons)  v.  Paterson. 

Attorney-General  v.  Pope,  N.  B.  Eq.  Cas.  272 70,  437 

Attorney-General  v.  Revere  Copper  Co.,  152  Mass.  444 51 

Attorney-General  v.  Richards,  2  Anst.  603 66 

Attorney-General   v.    Sheffield   Gas   Consumers   Co.,    19   Eng.   L.    J.    Eq. 

639 21>  24 

Attorney-General  v.  Smith,   109  Wis.  532 63 

Attorney-General  v.  Steward  &  Taylor,  20  N.  J.  Eq.  415,  417. .  .  .99,  126,  127 

158,417,  419 

Attorney-General  v.  Terry,  L.  R.  9  Ch.  423 483 

Attorney-General  v.  Tod  Heatley,  66  L.  J.  Ch.  N.  S.  275 453 

Attorney-General  v.  Tod  Heatley   (Ch.),  75  Law  T.  Rep.  452 439 

Attorney-General  v.  Tod  Heatley  (C.  A.,  1897),  1  Ch.  560 6,  48,  396 

Attorney-General  v.  Utica  Ins.  Co.,  2  Johns.  Ch.  (N.  Y.)  370,  381 .  .59,  85,  415 

Att wood  v.  Bangor,   83  Me.   582 290 

Augusta  v.  Reynolds  (Ga.,  1905),  50  S.  E.  998 212,  214,  258,  260,  437 

Augusta  City  Council  v.  Marks  (Ga.),  52  S.  E.  339 504 

Aurora  Electric  L.  &  P.  Co.  v.  McWethy,  104  111.  App.  479 218 

Austin  &  Northwestern  R.  Co.  v.  Anderson,  79  Tex.  427 496 

Ayers   v.   Norwich,  39  Conn.  376 255 

l.age  v.  Powers,  54  Hun    (N.  Y.),  635 78 

Babcock  v.  Buffalo,  56  N.  Y.  263 346 

Babcock  v.  New  Jersey  Stockyard  Co.,  20  N.  J.  Eq.  296 127,  158,  415 

Bacon  v.  Boston,  154  Mass.  100 69,  72,  76,  297 

Bacon  v.  Walker,  77  Ga.  336 70,  419 

Bagley  v.  People,  43  Mich.  355 226 

Bailey  v.  Gray,  53   S.  C.  503 36 

Bailey  v.  New  York  City,  38  Misc.  R.   (N.  Y.)  41 486 

Baker  v.  Bohannon,  69  Iowa,  60 208,  409,  440 

Baker  v.  Boston,  12  Pick.   (Mass.)    134 345,  348,  353  357 

Baker  v.  Leka,  48  111.  App.  353 459 

Baker  v.  McDaniel,   178  Mo.  447 218  429 

Baker  v.  Selma  Street  &  S.  R.  Co.,  135  Ala.  552 218 

Baker  v.  State,  53  N.  J.  Law  45 402 

xxvi 


Table  of  Cases. 

Sec. 

Baker  v.  Williard,   171  Mass.   220 36 

Baldwin  v.  Ensign,  49  Conn.  113,  117 3,  194 

Baldwin  v.  Erie  Shooting  Club,  127  Mich.  659 272 

Baldwin  v.  Miles,  58  Conn.  496 172 

Baldwin  v.  Oskaloosa  Gas  Light  Co.,  57  Iowa,  51 24 

Baldwin  v.  Smith,  82  111.   162 346 

Ball  v.  Nye,  99  Mass.  582 44 

Ball  v.  Kay,  L.  R.  8  Ch.  467 34 

Ballentine  v.  Webb,  84  Mich.  38 127, 128,  208 

Baltimore  v.  Marriott,  9  Md.   160 422 

Baltimore  v.  Radecke,  49  Md.  217,  229 335 

Baltimore  v.  Stole,  52  Md.  435 274 

Baltimore  v.  Warren  Mfg.  Co.,  59  Md.  96 304,  310,  478,  487 

Baltimore  &  Potomac  R.   R.   Co.  v.    Fifth  Baptist  Church,   108    U.   S. 

317 2,  24,  40,  76,  143,  178,  186,  442,  448,  460,  501 

Baltimore  Belt  R.  Co.  v.  Sattler,  100  Md.  306 497 

Baltimore  City  v.  Fairfield  Imp.  Co.,  87  Md.  352 40,  49,  397 

Baltziger  v.  Carolina  Midland  R.  Co.,  54  S.  C.  242 317,  430 

Bamford  v.  Turnley,  3  Best  &  S.  62 19,  34,  95,  96,  137,  140 

Bancroft  v.  Cambridge,  126  Mass.  438 84 

Bangor  v.  Rowe,  57  Me.  436 453 

Bankhart  v.  Houghton,  27  Beav.  425 4S5 

Bannon  v.  Rohmeiser,   17  Ky.  L.  Rep.   1378 422,  436 

Bannon  v.  Rohmeiser,  10  Ky.  L.  Rep.  395 416 

Barbee  v.  Penley,  L.  R.   ( 1893 ) ,  2  Ch.  447 115,  468 

Barber  v.  Union  Woolen  Co.,  42  Conn.  399,  402 »9 

Barclay  v.  Commonwealth,  25  Pa.  503 350,  377,  410 

Barclay's  Appeal,  93  Pa.   50,  55 460 

Bareham  v.  Hall,  22  L.  T.   (N.  S.)   116 145 

Barge  v.  City  of  Hickory,  130  N.  C.  550 280 

Barkan  v.  Knecht,  9  Ohio  Dec.  66 44,  161 

Barkan  v.  Knecht  (Ohio),  10  Wkly.  Law  Bull.  342 99,  118,  161,  417,  485 

Barlett  v.  Siman,  24  Minn.  448 458 

Barnard  v.  Shirley,  135  Ind.  547 267,  269,  270,  397,  481 

Barnes  v.  Aykroyd,  L.  R.  7  Q.  B.  474 43,  472 

Barnes  v.  Calhoun,  37  N.  C.  199 415,  4S4 

Barnes  v.  Hathorn,  54  Me.   124 1,  2,  3,  9,  19,  22,  27,  33,  39,  393,  420 

Barnet  v.  Ihric,  17  Serg.  &  R.   174 36U 

Barnett  v.  Laskey,  68  L.  J.  Q.  B.  N.  S.  55 331 

Barnum  v.  Vandusen,   16  Conn.  200 193 

Barrett  v.  Lake  Ontario  Beach  Imp.  Co.,  174  N.  Y.  310 463 

Barrett  v.  Mt.  Greenwood  Cemetery  Assoc,  159  111.  3S5 393,  477 

xxvii 


Table  of  Cases. 

Sec. 

Barrick  v.   Schifferdecker,  123  N.  Y.  52 40,  121 

Barring  v.  Commonwealth,  03  Ky.  95 310 

Barter  v.  Commonwealth,  2  1*.  &  W.   (Pa.)   253 50 

Lett  v.   Clarksburg,  45  W.  Va.  393 279 

Bartlett    v.    Simon,    24   Minn.    448 456 

Barton  v.  Union  Cattle  Co.,  28  Neb.  250 363 

i      .,  it  v.  Salisbury  Mfg.  Co.,  47  N.  H.  420 '. 485 

man  v.  Bluek,  18  Q.  B.  870 370 

Bates  v.  Holbrook,  171  N.  Y.  460 244 

Bates  v.  Holbrook,  89  App.   Diy.    |  X.  Y.)    548 492 

Baumgartner  v.  Hasty,  100  Ind.   575 343,  345 

Baxendale  v.  McMurray,  L.  E.  2  Ch.  App.  790 304,  328 

Baxter  v.  Spuyten  Duyvil  &  P.  M.  R.  Co.,  61  Barb.  (N.  Y.)   428 70 

Baxter  v.  Winooski  Turnpike  Co.,  22  Vt.   114 39,  218,  219,  430 

Bayzer  v.  McMillan,   10.3  Ala.  395 272 

Beach  v.  Elmira,  58  Hun   (N.  Y.),  606 286 

Beach  v.  Elmira,  22  Hun,   158 417 

Beach  v.  People,  11  Mich.   10G 319 

Beach  v.  Sterling  Iron  &  Z.  Co.,  54  N.  J.  Eq.  65 382,  415,  477 

rdmore  v.  Tredwell,  7  L.  T.  N.  S.  207 39,  145 

Bear  River  &  A.  Water  &  Min.  Co.  v.  Boles,  24  Cal.  359 277 

Beatrice  Gas  Co.  v.  Thomas,  41   Neb.  662 382,  495 

Beatty  v.  Gilmore,  16  Pa.  463 230 

Beavers  v.  Trimmer,  25  N.  J.  L.  97 450 

Beck  v.  Carter,  68  N.  Y.  283 230 

Becker  v.  Marble  Creek  Irrig.  Co.,   15  Utah,  225 265 

Beckham  v.  Brown,  19  Ky.  Law  R.  519,  520 126,  208,  430 

Beckley  v.  Skroh,  19  Mo.  App.  75 160,  162 

Bedell  v.  Long  Island  R.  R.  Co.,  44  N.  Y.  367 75 

Bedlow  v.  New  York  Floating  Dry  Dock  Co.,  112  N.  Y.  263 275 

Beebe  v.  Wilkins,  67  N.  H.  164 399 

Begein  v.  Anderson  City,  28  Ind.  79 393 

Beideman  v.  Atlantic  City  R.  Co.    (N.  J.) ,  19  Atl.  731 185,  249 

Beir  v.  Cooke,  37  Hun   (N.  Y.) ,  38 41 

Bell  v.  Blount,  2  N.  C.  384 418 

Bell  v.  Glaseker,  82  Iowa,  736 473 

Bell  v.  Ohio  &  P.  R.  Co.,  25  Pa.  161 417 

v.  Rochester,  33  N.  Y.  St.  R.  739 460 

Belleville  Tp.   Essex   County  v.   City  of  Orange    (N.  J.   Eq.,    1905),   62 

Atl.    331    439 

Bellinger  v.  New  York  Cent.  R.  R.  Co.,  23  N.  Y.  43 69 

Belton  v.  Baylor  Female  College  (Tex.  Civ.  App.),  33  S.  W.  680.310,  353,  439 

xxviii 


Table  of  Cases. 

Sec. 

Belvidere  Gaslight  &  F.  Co.  v.  Jackson,  81  111.  App.  424 '  481 

Bemis  v.  Arlington,   114  Mass.  507 255 

Bemis  v.  Clark,  11  Pick.  (Mass.)   452 416,  455 

Bemis  v.   Uphano,    13   Pick.   169 415 

Bendick  v.  Scobel,  107  La.  242 272 

Benjamin  v.  Metropolitan  Street  R.  Co.,  133  Mo.  274 231,  232 

Bennett  v.  Fifield,  13  R.  I.  139 255 

Bennett  v.  Marion,   119   Iowa,   273 297,  329 

Bennett  v.  National  Starch  Mfg.  Co.,  103  Iowa,  207 486 

Bentley   v.   Atlanta,    92   Ga.    623 218,  445 

Bentley  v.  Empire  Portland  Cement  Co.,  48  Misc.  R.   (N.  Y.)   457. .  .483,  487 

Benton  v.  Johneox,  17  Wash.  277 265,  270 

Bergen  County  Chosen.  Freeholders  v.  State,  42  N.  J.  L.  263 449 

Berger  v.  Minneapolis  Gaslight  Co.,  6  N.  W.  336 388 

Berkshire  Woolen  Co.  v.  Day,  12  Cush.   (Mass.)    128 416 

Bernbe  v.  Anner  Arundel  Co.,  94  Md.  321 218 

Bernheimer  v.  Manhattan  Ry.  Co.,  13  N.  Y.  Supp.  913 39 

Berry  Horn  Coal  Co.  v:  Scruggs  McClure  Coal  Co.,  62  Mo.  App.  93 ... .  260 

Bert  v.  Smith,  3  Phila.    (Pa.)    363 485 

Beseman  v.  Pennsylvania  R.  R.  Co.,  50  N.  J.  L.  235 76 

Bessonies  v.   City  of  Indianapolis,  71   Ind.   189 397 

Beveridge  v.  Lacey,  3  Rand.  63 430 

Bidder  v.  Croydon  Local  Board,  6  L.  T.  778 293 

Biddle  v.  Ash,  2  Ashm.  211 415,  419 

Biddulph  v.  St.  George's  Hanover  Square  Vestry,  3  De.  G.  J.  &  S.  493 . .  288 

Bielman  v.  Chicago,  St.  Paul  &  Kansas  City  R.  R.,  50  Mo.  App.  151 .  .209,  211 

Bigelow  v.  Hartford  Bridge  Co.,  14  Conn.  565 429 

Bigelow  v.   Weston,  3  Pick.    (Mass. )    267 264 

Bills  v.  Belknap,  36  Iowa,  583 252,  253 

Bills  v.   Goshen,   117  Ind.   221 335 

Bird  v.  St.  Mary  Abbotts,  64  L.  J.  M.  C.  N.  S.  215 455 

Birmingham  v.  Land,  137  Ala.  538 50,  53,  278,  284,  448 

Biscoe  v.  Great  Eastern  Ry.  Co.,  L.  R.  16  Eq.  Cas.  636 75 

Bishop  v.  Banks,   33  Conn.   118,   121 99,  158,  208 

Bizer  v.  Ottumwa  Hydraulic  Power  Co.,  70  Iowa,   145 322,  495 

Blac  v.  Klumpke,  29   Cal.   156 4 

Black  v.  Brooklyn  Heights  R.  R.  Co.,  32  App.  Div.    (N.  Y.)   468 249 

Black  v.   McGilvery,  38  Me.  287 399 

Blagen    v.    Smith,    34   Oreg.    394 391 

Blanc  v.  Murray,  36  La.  Ann.  162 , 435 

Blanchard  v.   Baker,   8  Me.   253 39 

Blanchard  v.  Western  Un.  Tel.  Co.,  60  N.  Y.  510 273 

xxix 


Table  of  Cases. 

Sec. 

Bliss  v.  Grayson,  25  Nev.  329 328 

Bliss   v.  Grayson,  24   Nev.   422 2,  4,  29,  32,  33 

Blizzard  v.  Danville,  175  Pa.  St.  479 50,  57 

Block  v.   Jacksonville,  30   111.   301 339 

Bloom  v.  Koch,  03  N.  J.  Eq.  471 36 

Bloomhuff  v.  State,  8  Black.   (Ind.)   205 109,  474 

Bloomington  v.  Costello,  65  111.  App.  407 50,  312 

Bloomington  v.  Murnin,  30  111.  App.  047 280 

Bly  v.  Edison  Elec.  Ilium.  Co.,  172  N.  Y.  1 11,  41,  445,  493 

Bly  v.  Edison  Elec.  Ilium.  Co.," Ill  App.  Div.   (NY.)    170 492 

Bly  v.  Edison  Elec.  Ilium.  Co.,  54  App.  Div   (N.  Y.)   427 191,  493 

Board  of  Commrs.  of  St.  Joseph's  County  v.  Pidge,  5  Ind.  13 275 

Board  of  Health  v.  Copcutt,  140  N.  Y.  12 440 

Board  of  Health  v.  Cotton  Mills,  40  La.  Ann.  806 302,  365,  415,  416 

Board  of  Health  v.  Diamond  Mills  Paper  Co.,  03  N.  J.  Eq.   Ill 304 

Board  of  Health  of  Green  Island  v.  Magill,  17  N.  Y.  App.  Div.  249.  .438,  440 

Board  of  Health  v.  Maginnis  Cotton  Mills,  46  La.  Ann.  806 158 

Board  of  Health  of.     See  name  of  city. 

Board  of  Police  Commissioners  v.  Wagner,  93  Md.  182 82 

Board  of  Trade  Teleg.  Co.  v.  Blume,   176  111.  247 252 

Bohan  v.  Port  Jervis  Gas  Light  Co.,  122  N.  Y.  18, 2,  5,  8, 18, 19,  27,  29 

32,33,72,92,99,157,  166 

Bohan  v.  Port  Jervis  Gas  Light  Co.,  45  Hun   (N.  Y.),  257 76 

Bohusack  v.  McDonald,  26  Misc.  R.    (N.  Y.)   493 74 

Boise  City  Irrigation  &  Land  Co.  v.  Stewart  (Idaho,  1904),  77  Pac.  25.  .  .  265 

Boler  v.  Sergenfrei   (N.  Y.  Sup.,  1905),  86  N.  Y.  Supp.  ISO 192 

Bolivar  Mfg.  Co.  v.  Nepouset,  10  Pick.    (Mass.)    241 39 

Bollinger  v.  Com.,  98  Ky.  574 415 

Bolton  v.  New  Rochelle,  84  Hun   (N.  Y. ) ,  281 279 

Bond  v.  Wool,   107  N.  C.  139 275 

Bonnell  v.  Smith  &  Bro.,  53  Iowa,  281 43 

Bonner  v.  Great  Western  Ry.  Co.,  48  L.  T.  Rep.  N.  S.  619 36 

Bonner  v.    Welborn,   7    Ga.    296 9,  27,  436,  444 

Boom  v.   City  of  Utica,  2  Barb.   104 397 

Booniri-   v.   Wilbur,   176   Mass.  482 473 

Booth  v.  Rome,  W.  O.  T.  R.  Co.,  140  N.  Y.  267 108 

Booth  v.  Rutte   (P.  C),  L.  R.  15  App.  Cas.  188 303 

Booth   v.   State,   4   Conn.   05 342 

Borden  v.  Atlantic  Highlands  R.  B.  &  L.  B.  E.  R.  R.  Co.  (N.  J.  Ch.),  33 

At).   270    246 

Borggard  v.  Gale,  205  111.  511 470 

Borough  of,   (see  name  of  borough). 

XXX 


Table  of  Cases. 

Sec. 

Boss  v.  Jarmulowsky,  81  N.  Y.  App.  Div.  577 472 

Boston  &  L.  R.  Corp.  v.  Salem  &  L.  R.  Co.,  2  Gray  (Mass.),  1 442 

Boston  Ferrule  Co.  v.  Hills,  159  Mass.  147 85,  299 

Boston  Rolling  Mills  v.  Cambridge,  117  Mass.  396 448 

Boston  Water  Power  Co.  v.  Boston  &  W.  R.  Corp.,  16  Pick.  512 415 

Bowden  v.  Edison  Electric  Ilium.  Co.,  29  Misc.  R.   (N.  Y.)    171 89,  187 

Bowden  v.  Kansas  City,  69  Kan.  587 279 

Bowden  v.  Lewis,  13  R.  I.   189 370 

Bowden  v.    Rockland,   96  Me.    129 279 

Bowe  v.  Peate,  1  Q.  B.  Div.  321 472 

Bowen   v.   Mauzy,    117    Ind.    258 102,  107 

Bowen  v.  Wendt,  103  Cal.  236 4,  50,  303 

Bowman   v.   Humphrey,    124   Iowa,    744 329, 474, 483,  494 

Bownell  v.  Smith,  53  Iowa,  281 fi 94 

Boyd  v.  Board  of  Councilmen  of  Frankfort   (Ky.  C.  A.,  1903  )s  77  S.  W. 

669 336 

Boye  v.  Albert  Lea,  74  Minn.  230 279 

Braasch  v.  Cemetery  Assoc.  (Neb.),  95  N.  W.  646 393 

Bradford  v.  McQuestion,  182  Mass.  80 275 

Bradford  Glycerine   Co.  v.   St.   Mary's   Woolen  Mfg.   Co.,   60   Ohio   St. 

560 382,  385 

Bradley  v.  District  of  Columbia,  20  App.  D.  C.  169 83 

Bradley  v.  People,  56  Barb.  72 383 

Bradley  v.  Pharr,  45  La.  Ann.  426 219 

Bradsher  v.  Lea's  Heirs,  38  N.  C.  301 415,  484 

Brady  v.  Detroit  Steel  &  S.  Co.,  102  Mich.  277 158 

Brady  v.  Klein,  133  Mich.  422 461 

Brady  v.  Northwestern  Ins.  Co.,  11  Mich.  425 343 

Brady  v.  Steel  &  Spring  Co.,   102  Mich.  277 43,  387 

Brady  v.  Weeks,  3  Barb.    (N.  Y.)    157.  ...  19,  54,  87,  95,  97,  126,  127,  128,  446 

Braender  v.  Harlem  Lighting  Co.,  2  N.  Y.  Supp.  245 176 

Brakkan  v.  Minneapolis  &  St.  L.  R.   Co.,  29  Minn.  41 222,  259 

Branahan  v.  Cincinnati  Hotel  Co.,  39  Ohio  St.  333 80 

Brayton  v.  Fall  River,  113  Mass.  218 295,  431,  448 

Bridgeport  v.  Housatonic  R.  R.  Co.,  15  Conn.  475 342 

Briegel  v.  Philadelphia,  135  Pa.  St.  451 356 

Brigantine  v.  Holland  Trust  Co.   (N.  J.  Ch.),  35  Atl.  344 262 

Brightman  v.  Inhabitants  of  Bristol,  65  Mo.  426 350,  416 

Brill   v.   Flagler,  23   Wend.    (N.  Y.)    354 195 

Brimberry  v.  Savannah,  F.  &  W.  R.  Co.,  78  Ga.  641 317,  476 

Brinkman  v.  Eisler,  16  N.  Y.  Supp.  154 258 

Bristol  Door  &  L.  Co.  v.  Bristol,  97  Va.  304,  308 349,  351 

xxxi 


Table  of  Cases. 

Sec. 

Tuition  v.  Guy    (S.  Dak.,  1904),  97  N.   W.  1045 399, 438,  439 

Broadbent  v.  Imp-rial  Gas  Light  &  Coke  Co.,  7  De  M.  &  G.  436 26 

Brock  v.  Connecticut  &  P.  R.  Co.,  35  Vt.  373 411 

Broder  v.  Baillard  L.  R.  2  Ch.  Div.  692 174,  176 

Broder  v.  Baillard,  45  L.  J.  Ch.  414 394 

Brokaw  v.  Highway  Commrs.,   130   111.   482 219 

Bronlow  v.  Metropolitan  Board  of  Works,  13  C.  B.  N.  S.  768 295 

Brook  v.  O'Boyle,  27   111.  App.  384 368 

Brookline  v.    Mackintosh,    133   Mass.  215 53 

Brooklj  ii  City  R.  Co.  v.  Furey,  4  Abb.  Pr.  N.  S.   (N.  Y.)    364 242,  382 

Brooks  v.  Reynolds,  106  Mass.  31 36 

Broom   v.    Koch,  63   N.   J.   Eq.    10 36 

Brostrom  v.  Lauppe,  179  Mass.  315 403 

Brower  v.  City  of  New  York,  3  Barb.    (N.  Y.)    254 353 

Brown  v.  Carolina   Cent.  Ry.  Co.,  83  N.  C.  128 484 

Brown  v.  Collins,  53  N.  H.   442 382 

Brown  v.  De  Groff,  50  N.  J.  L.  409 370 

Brown  v.  District  Council  of  Narrangansett,  21  R.  I.  503 846 

Brown  v.  Dunstable,  2  Ch.  378 328 

Brown  v.  Cayuga  &  S.  R.  R.  Co.,  12  N.  Y.  486 457,  458 

Brown  v.  Houston,   114   U.   S.  630 274 

Brown    v.    Hunn,    27    Conn.    332 343 

Brown    v.   Kistner,   190   Pa.  499 312 

Brown   v.   Maryland,    L2   Wheat.   419 274 

Brown   v.    McAllister,   39   Cal.   575 316 

Brown   v.   Perkins,   12  Gray    (Mass.),  89 370 

Brown  v.   Vinalhaven,   65   Me.  402 279 

Brown  v.  Watson,  47   Me.   161 217,  218,  221,  422 

Brown  v.  White,  202  Pa.  St.  297 463 

Brown  \.  Woodworth,  5   Barb.    (N.  Y.)   550 447,  475 

Brownhead  v.  Grant,  83  Ga.  451 429 

Bruce  v.  State,  S7    Ind.  450 454 

Bruning  v.  New  Orleans  Canal  &  Banking  Co.,  12  La.  Ann.  541 422 

Brunner  \.  Schaffer,  11  Pa.  Ct.  Rep.  550 14,  430 

Brutsche  v.  Bowers,  122  Iowa,  226 240 

Bryans  v.  Almond.  87  Ga.  5(54 216 

Bryson  v.  Philadelphia  Brewing  Co.,  209  Pa.  40 472 

Bubh  v.  Curators  of  University  of  State  of  Missouri,  40  Mo.  App.  173..  40 

Buckman  v.  Green,  0  ITnn   (N.  Y.),  225 40 

Buffalo  v.  Webster,  10  Wend.   (N.  Y.)   99 197 

Bungenstock  v.   Nishuahatua  Drainage  Dist.,  163   Mo.   198 306 

Bunker  v.  City  of  Hudson   ( Wis. ) ,  99  N.  W.  448 279 

xxxii 


Table  of  Cases. 

Sec. 

Burbank  v.  Bethel   Steam  Mill  Co.,  75  Me.  373 472 

Burdick  v.  Cheadle,  26  Ohio  St.  393,  396,  397 466 

Burditt  v.    Swenson,    17   Tex.   489 3,  9,  19,  200,  201 

Burgett  v.  Greenfield,   120  Iowa,  432 252 

Burke  v.  Smith,  09  Mich.  380 404 

Burlington  v.  Pennsylvania  R.  Co.,  56  N.  J.  Eq.  259 246 

Burlington  v.  Stockwell,  5  Kan.  App.  569 5,  8,  14,  163,  208,  478 

Burnett,  Ex  -parte,  30  Ala.  461 329 

Bumham   v.   Kempton,   44   IS!.   H.    78 415,  417 

Burrows  v.  Pixley,  1  Root,  362 422 

Burrus  v.  Columbus,  105  Ga.  42 247 

Busch  v.  New  York,  L.  &  W.  R.  Co.,  12  N.  Y.  Supp.  85 305 

Bush  v.   Dubuque,   69   Iowa,   233 305,  348 

Bushnell  v.  Robeson,  62  Iowa,  540 126,  127,  415 

Butler  v.  Mayor,  etc.,  of  Thomasville,  74  Ga.  570 284,  415,  420,  448 

Butler  v.  Rogers,  9  N.  J.  Eq.  187 419 

Butler  v.  State,   6  Ind.   165 71,  407 

Butler  v.  White  Plains,  59  N.  Y.  App.  Div.  30,  33 460 

Butler  v.  White  Plains,  69  N.  Y.  Supp.  193 477 

Butman  v.  Newton,  179  Mass.   1 279 

Butterfield  v.  Klabner,  62  How.  Prac.(N.  Y.) 255. 20,  88,  93,  180,  182,  183.  184 

Butterfoss  v.  Board  of  Health,  40  N.  J.  Eq.  325 158 

Byers  v.  Trustees  of  Olney,   16  111.  35 339 

Byrne  v.  Minneapolis  &  St.  L.  R.  Co.,  38  Minn.  212 459 

Byrnes  v.  City  of  Cohoes,  67  N.  Y.  204 448 

Cadigan  v.  Brown,   120   Mass.  493 24,  415,  443,  493 

Cahill  v.  Eastman,    18   Minn.   324 18,  382,  385 

Cain  v.  Chicago,  R.  I.  &  P.  R.  Co.,  54  Iowa,  255 70,  88,  436 

Cain  v.  City  of  Syracuse,  95  N.  Y.  83 358 

Caldwell  v.  Gale,   11  Minn.  77 456 

Caldwell  v.  Knott,   10   Yerg.    (Tenn.)    209 417,  485 

Calef  v.   Thomas,   81    111.   478 376 

California  Pastoral  &  Agricultural  Co.  v.  Enterprise  Canal  &  Land  Co., 

127    Fed.    741 312 

Call  v.  Allen,  1  Allen,  137 393 

Call  v.  Buttrick,  4  Cush.    (Mass.)   345 437 

Callanan  v.  Gilman,  107  N.  Y.  36 220 

Cambridge  v.  Trelegan,    181   Mass.  565 331 

Cameron  v.  Kenyou-Connell  Commercial  Co.,  22  Mont.  312,  317 450,  452 

Cameron  v.  Heister  (Ohio ) ,  22  Wkly.  Law  Bui.  384 258 

Camfield  v.  United  States,  167  U.  S.  518,  526 373 

xxxiii 


Table  of  Cases. 

Sec. 

<  ampbell  v.   Portland  Sugar  Co.,   02   Me.  552 471 

i  lampbell  v.   Sehofield,  2  Leg.  Int.  325 415 

Campbell   v.  Seaman,  63  N.  Y.   558 56,111,137,140,145,  158 

Campbell  v.  Seaman,  2  T.  &  C.   (N.  Y.)    231 2,  9,  16,  19,21,22,  24 

26,  27,  33,  34,  40 

( !a  nal  Commrs.  v.  East  Peoria,  179  111.  214 306 

canal  Melting  Co.  v.  Columbia  Park  Co.,  99  111.  App.  215 40,  116,  417 

Cannon    v.    Merry,    116    Ga.    291 399,  430 

(ant. hi  ( lotton  Warehouse  Co.  v.  Potts,  69  Miss.  31 218 

Card   v.   Ellsworth,    05   Me.   547 255 

(aldington,  Village  of,  v.  Fredericks,  46  Ohio  St.  442 2,  5,  8,  11,  13 

Cardwell   v.  American  Bridge   Co.,    113  U.   S.   205 272,  326 

Cardwell  v.  County  of  Sacramento,  79  Cal.  347 4 

Carey  v.  Ledbetter,   13   C.   B.    (N.   S.)    470 95,137,  145 

Carhart  v.  Auburn  Gaslight  Co.,  22  Barb.   (N.  Y.)   297 120,  303 

Carl  v.  West  Aberdeen  Land  &  I.  Co.,  13  Wash.  616 422 

Carland  v.  Aurin,   103  Tenn.  555 160,  305 

Carleton  v.  Redington,  1   Fost.    (N.  H.)   291 456,  458 

Carleton  v.  Rugg,  149  Mass.  550 14,  81,  365,  416,  436 

Carlisle  v.  Cooper,  21  N.  J.  Eq.  576 415,  485 

Carlisle  v.  Cooper,  18  N.  J.  Eq.  241 58,  363 

Carll  v.  Northport,  11  App.  Div.   (N.  Y.)    120 355 

Carmichael   v.   Texarkana,   94   Fed.   561 289,  474,  487 

Caro  v.  Metropolitan  Elev.  Ry.  Co.,  46  N.  Y.  Super.  Ct.  138 70,  157,  188 

Carpenter  v.   Cummings,  2   Phila.   74 398,  419 

Carpenter  v.  La  Ville  de  Maisouneure  Rap.  Jud.  Que.,  11  S.  C.  242.  .140,  143 

Carpenter  v.  Mann,  17  Wis.  155 218 

Carroll  v.   Lynchburg,  84   Va.   803 343 

Carroll  v.  Marcoux,  98  Me.  259 192 

Carroll  v.   Price,   81    Fed.    137 272 

Carruthers  v.  Tillman,  2  N.  C.  576 329 

Carson  v.  Central  R.,  35  Ga.  325 247 

Cart  v.  West  Aberdeen  Land  &  I.  Co.,  13  Wash.  316 433 

Carter  v.  Bartel,   110  Iowa,  211 473 

Carter  v.  New  York  El.  R.  Co.,  14  N.  Y.  St.  R.  459 485 

Carthage,   City  of,  v.  Munsell,  203  111.  474 16 

Cartwright  v.  Bear  River  &  A.  W.  &  M.  Co.,  30  Cal.  573 4.  9 

Cartwright  v.  Cohoes,  39  App.  Div.   (N.  Y.)   69 331,  380 

Cartwright  v.  Gray,  12  Grant  Ch.   (Ont.)  400 136,  137,  143 

Case  v.  Loftus,  39  Fed.  730 275 

Case  v.   Minot,   158  Mass.   577 37 

Casebeer  v.   Mowry,  55   Pa.  419 39,  487 

XXX IV 


Table  of  Cases. 

Sec. 

Castle  v.  Smith    (Cal.),  36   Pac.   859 455,  458 

Catlin  v.  Patterson,  ION.  Y.  St.  R.  724 99,  157 

Catlin  v.  Valentine,  9  Paige  Ch.   (N.  Y.)   575 19,  87,  126,  129 

Cavanagh  v.   Boston,    139   Mass.   426 325 

Center  &  Treadwell  v.  Davis,  39  Ga.  210 4 

Centerville  v.  Miller,  37  Iowa,  56 340,  391 

Central  R.  R.  v.  English,  73  Ga.  366 445,  458 

Central  Trust  Co.  v.  Wabash,  St.  L.  &  P.  R.  Co.,  57  Fed.  441 456 

Chaffee  v.  Telephone  &  Teleg.  Co.,  77  Mich.  625 485 

Chalkley  v.   Richmond,  88   Va.  402 280,  448 

Chamberlain  v.  Douglass,  24  App.  Div.  582 90 

Chamberlain  v.  Missouri  Electric  Light  &  Power  Co.,  158  Mo.   1..  ..41,  188 

Chambers  v.   Cramer,   49    W.   Va.    395 107,  419 

Chambridge  Springs  v.  Moses,  22  Pa.  Co.  Ct.  R.  637 332 

Chancey  v.  Byrne,  56  N.  Y.   129 471 

Chandler  Electric  Co.  v.  Fuller,  21  Can.  S.  C.  337 457 

Chapman  v.  Albany  &  Schenectady  R.  R.  Co.,  10  Barb.  (N.  Y.)   360.  ...  78 

Chapman  v.  Gates,  54  N.  Y.  132 216 

Chapman   v.  Rochester,    110   N.   Y.   273 286,329,365,  485 

Charles  River  Bridge  v.  Warren  Bridge,  6  Pick.  376 419 

Charleston  v.  Werner,  38  S.  C.  488 362 

Charlotte  v.   Pembroke   Iron  Works,   82   Me.   391 50,212,218,413,  438 

Charnley  v.  Shawano  Water  Power  &  River  Imp.  Co.,  109  Wis.  563 328 

Chase  v.  Middleton,   123   Mich.   647 331 

Chase  v.  Oshkosh,   81   Wis.   313 52  253 

Chastey  v.  Ackland   (1895),  2  Ch.  839 36,  37 

Chatfield  v.   New  Haven,   1 10  Fed.  788 274 

Chatfield  v.  Wilson,  28  Vt.  49 43 

Chattahoochee  &  G.  R.  Co.  v.  Behrmann,  136  Ala.  508 472 

Chattanooga  v.  Dowling,  101  Tenn.  342 281,  345,  355,  448,  460 

Chattanooga  v.  Reid,   19  Pickle,   616 285 

Cheatham  v.   Shearon,   1    Swan    (Tenn.),  213 22, 384,  419 

Chessman  v.  Hale    (Mont.,   1905),  79  Pac.  254 270,  415 

Chenango  Bridge  Co.  v.  Paige,  83   N.  Y.   178 43,  416 

Cherry  v.  Stein,  11  Md.  1 36 

Chester  v.  Smelting  Corp.,  85  Law  T.  87 487 

Chicago  v.  Norton  Milling  Co.,  97  111.  App.  651 279,  287 

Chicago  v.  Selz,  Schwab  &  Co.,  202  HI.  545 279 

Chicago  v.   Union  Building  Assoc,   102  111.  379 218 

Chicago  v.  Union  Stockyards  &  T.  Co.,  164  111.  224 377,  378 

Chicago  &  E.  R.  R.  Co.  v.  Keith,  21  Ohio  Cir.  Ct.  R.  669 .'  82 


XXXV 


Table  ok  Cases. 

Sec. 

Chicago,  Burlington  &  Quincy  R.  Co.  v.  Schaffer,  124  111.  112 459,  496 

(hi.  ago  Dock  &  Canal  Co.  v.  Garrity,  115  111.  155 78 

Chicago  Forge  &  Bolt  Co.  v.  Sauche,  35  111.  App.  174 85,484,  495 

I  hi,  ago  General  Elec.  Ry.  Co.  v.  Chicago  City  Ry.  Co.,  186  111.  219. ..  .  242 

I  Imago  Gen.  Ry.  Co.  v.  Chicago,  B.  &  Q.  R.  Co.,  181  111.  605 429,  432 

(  hi. ago  G.  W.  Ry.  Co.  v.  First  Methodist  Episcopal  Church,  102  Fed. 

85 36,  69,  178 

Chicago  G.  W.  Ry.  Co.  v.  Kenyon,  7  111.  App.  567,  569,  570 256 

i  hi.ago,  R.  I.  &  P.  R.  Co.  v.  Joliet,  79  111.  25 342 

Chicago  City  v.  Robbins,  2  Black.   (U.  S.)   418,  424 229,239,  472 

(  hi.ago  Transit  Co.  v.  Campbell,  110  111.  App.  366 272 

Childs  v.  Nelson,  69  Wis.  125 50 

Chipman  v.  Palmer,  77  N.  Y.  51,  53 142,  304,  474 

( Ihippewa  Falls  v.  Hopkins,  109  Wis.  611 239 

Chisolm  v.   Caines,   67   Fed.   285 272 

Chope  v.  Detroit  &  Howell  Plank  Road  Co.,  37  Mich.  195 67 

Christ  Church  v.  Lavezolo,   156  Mass.   89 36 

( Ihristian  v.   Dunn,  8  Kulp.   320 429 

Christie  v.  Davey   (1893),   1  Ch.  316 176 

Churchill  v.  Burlington  Water  Co.,  94  Iowa,  89 57 

Church  of  St.  Margaret  v.  Stephens,  29  Ont.  Rep.  185 178 

( libulski  v.  Hutton,  62  N.  Y.  Supp.  166,  47  App.  Div.  107 384,  474 

l  illy  v.  Cincinnati,   7  Ohio  Dec.  Reprint,  344 410,  485 

i  iii.innati  R.  Co.  v.  Commonwealth,  80  Ky.  137 248,  413 

Citizens  of,  see  Name  of  Town. 
City  of,  see  Name  of  City. 

Clark  v.   Blackmar,   47   N.   Y.    150 78 

(  lark  v.  Chicago  &  N.  W.  R.  Co.,  70  Wis.  593 422 

Clark  v.  Devoe,  48  Hun   (N.  Y.),  512 453 

(lark  v.  Fry,  8  Ohio  St.  358 230 

Clark  v.   Lawrence,   59  X.  C.  83 393 

Clark  v.  Peckham,  10  R.  I.  35 422 

(  lark   v.   Pennsylvania  R.  Co.,   145   Pa.  438 312 

(lark  v.  Sayhrook,  il   Conn.  313 218 

Clark  v.   Syracuse,   13  Barb.    (N.  Y.)    32 348 

<  la  i  k  v.  Thatcher,  9  Mo.  App.  436 445 

i  lark  v.   Wash,   L98   I  .  S.  Rep.  361 270 

Clark's  A.lnfx  v.  Hannibal  &  St.  J.  R.  Co.,  36  Mo.  202 70 

<  flawson  v.  Primrose,  4  Del.  Ch.  643 36 

(lay  v.  Hart.  55  X.  Y.  Supp.  43 318 

Cleveland  v.  Beaumont,  2  Ohio  Dec.  172 280,  448 


XXXVI 


Table  of  Cases. 

Sec. 

Cleveland  v.  Citizens   Gaslight  Co.,  20  N.  J.  Eq.  201 2,  20,  39,  99,  120 

138,  141,  157,  162,  163,  166,  419 

Cleveland  v.  Lenze,  27  Ohio   St.  383 343 

Cleveland,  C,  C.  &  St.  L.  Ry.  Co.  v.  King,  23  Ind.  App.  573.  .24,  170,  305,  329 

Cleveland,  C,  C.  &  St.  L.  R.  Co.  v.  Pattison,  67  111.  App.  351 73,  209 

Cleveland  Terminal  &  Valley  Rd.  Col.  v.  Marsh,  63  Ohio  St.  236 382 

Clifford  v.  Dam,  81  N.  Y.  52 231,  232 

Clifford  v.  Holt   ( 1899) ,  68  L.  J.  Ch.  N.  S.  332 36 

Clifton  v.  Town  of  Weston,  54  W.  Va.  250 415 

Clifton  Iron  Co.  v.  Dye,  87  Ala.  468 39,  484,  485 

Cline  v.  Stock   (Neb.,  1904),  98  N.  W.  454 265 

Clinton   v.  Howard,   42   Conn.    294 255 

Clinton  Bridge,    10  Wall.    (U.   S.)    454 274 

Cloverdale  v.   Smith,   128  Cal.  230 50,  306,  458 

Clowes  v.  Staffordshire  Potteries  Waterworks  Co.,  L.  R.  Ch.  App.  125..  304 

Clowes  v.  Staffordshire  Water  Works  Co.,  42  L.  J.  Ch.  107 288 

Coal  Co.  v.   Sanderson,    113  Pa.   St.   136 385 

Coast  Co.  v.  Spring  Lake,  56  N.  J.  Eq.  615,  618 370 

Coats  v.  Atchison,  Topeka  &  Santa  Fe  Ry.  Co.   (Cal.),  82  Pac.  640 218 

243, 458,  494 

Cobb  v.  Commissioners  of  Lincoln  Park,  202  111.  427,  437 62,  66 

Cochran  v.  Park  Ridge,   138   111.  295 293 

Coe  v.  Schultz,  2  Abb.  Prac.  193 380 

Coffer   v.    Territory,    1    Wash.    325 416 

Cogswell  v.  New  York,  N.  H.  &  H.  R.  R.  Co.,  103  N.  Y.   10 72,  76 

Cohen  v.  Cleveland,  43  Ohio  St.   190 329 

Cohen  v.  King  Knob  Club  (W.  Va.),  46  S.  E.  799 * 401 

Cohen  v.  La  Canada  Land  &  Water  Co.,  142  Cal.  437 314 

Cohen  v.   New  York,    113   N.   Y.   532 212, 227, 229,  26* 

Cohen  v.  New  York,  113  N.  Y.  700 35" 

Coker  v.  Birge,  10  Ga.  336 200 

Coker  v.  Birge,  9  Ga.  425 4,  26,  205 

Colchester  v.  Brooke,  7  Ad.  &  El.  339 370 

Coldwater  v.   Tucker,   36  Mich.  474 293 

Cole  v.  Kegler,  64  Iowa,  59 332 

Coleman  v.  City  of  New  York,  70  App.  Div.   (N.  Y.)   218 69,  158,  396 

Collins  v.   Cleveland,  2  Ohio  S.  &  C.   P.   Dec.  380 205 

Collins  v.  Laugher   (L.  894),  3  Ch.  659 36 

Colorado  Central  R.  Co.  v.  Mellaudin,  4  Colo.  154 242 

Colstrum  v.  Minneapolis  &  St.  Louis  Ry.  Co.,  33  Minn.  516 39,  497 

Columbian  Athletic  Club  v.  State,   143   Ind.   98 450 

Columbus  v.  Hydraulic  Woolen  Mills  Co.,  33  Ind.  435 307 

xxxvii 


Table  of  Cases. 

Sec. 

Columbus  v.  Jaques,  30  Ga.  506,  512 59,  61,  214 

ColumbuB   v.    Rodgers,    10  Ala.   37 2o/ 

,  olumbua  &   H.  Coal  &  I.  Co.  v.  Tucker,  48  Ohio  St.  528 487 

Columbus  Gas  Light  &  Coke  Co.  v.  Freeland,  12  Ohio  St.  392.  .3, 19,20,  93 

Colwell   v.   Waterbury,  74  Conn.  568 279 

Comminge  v.  Stevenson,  76  Tex.  642 3,  40,  41,  170,  383,  384,  474 

Commonwealth  v.  Alden,  143  Mass.  113 440,  455 

Commonwealth  v.  Allen,  148  Pa.  358 414 

Commonwealth  v.  Armstrong,  24  Pa.  Co.  Ct.  R.  442 208 

Commonwealth  v.  Blaisded,   107  Mass.  234 233 

Commonwealth   v.   Bredin,   165  Pa.  224 414,  416 

Commonwealth   v.   Burns,   167   Mass.   374 473 

Commonwealth  v.  Chapin,  5  Pick.   199 407 

Commonwealth  v.  Christie,   13  Pa.  Co.  Ct.  149 414 

Commonwealth  v.  Clark,  1  A.  K.  Marsh   (Ky.)   323 413,  437 

( lommonwealth  v.  Dicken,  145  Pa.  St.  453 216 

Commonwealth  v.  Erie  &  N.  E.  R.  Co.,  27  Pa.  339 242,  246 

Commonwealth  v.  Ephrata,  2  Pa.  Dist.  R.  349 448 

Commonwealth  v.  Ephrata.  10  Lane.  L.  Rev.  51 449 

(  i  immonwealth  v.  Foley.   9!)  Mass.  407 402 

Commonwealth  v.  Frankford  &  B.  Turnp.  R.  Co.,  9  Pa.  Co.  Ct.  103 450 

Commonwealth  v.  Greybill,  17  Pa.   Super.  Ct.  514 487 

i  lommonwealth  v  Harris,   101   Mass.  29 402,  486 

Commonwealth  v.   Hayes,   167   Mass.   176 473 

Commonwealth   v.    Howe.   13  Grey    (Mass.),  26 83 

Commonwealth  v.  Kidder,   107  Mass.   188 77 

Commonweal^  v.  Kinnaird,  18  Ky.  L.  Rep.  647 449 

Commonwealth  v.  Kinperts,  12  Pa.  Co.  Ct.  R.  463 262 

Commonwealth  v.  Linn,  158  Pa.  22 414 

Commonwealth  v.  Louisville  &  N.  R.  Co.,  22  Ky.  Law  Rep.  572 243 

Commonwealth  v.   Low,   3   Pick.   409 408 

Commonwealth  v.  Lynch,  160  Mass.  298 473 

Commonwealth  v.  McGivern,  25  Ky.  L.  Rep.  411 409 

Commonwealth  v.   McLaughlin,   120  Pa.   518 416 

Commonwealth  v.  McXaugher,   131   Pa.  St.  55 214,  216,  239 

Commonwealth  v.  Meyers,  8  Pa.  Co.  Ct.  R.  435 ! 390 

Commonwealth  v.  Miller,  139  Pa.  77 95 

Commonwealth  v.  Mohn,  52  Pa.  St.  243 475 

Commonwealth  v.  Moorehead,   118  Pa.  St.  344 50 

Commonwealth  v.  New  Bedford  Bridge  Co.,  2  Gray   (Mass.),  339 450 

Commonwealth  v.  Northern  C.  R.  Co.,  7  Pa.  Super.  Ct.  234 250 

Commonwealth  v.  Old  Colony  &  F.  R.  R.  Co.,  14  Gray  (Mass.),  93 246 

xxxviii 


Table  of  Cases. 

Sec. 

Commonwealth  v.  Passmore,  1  Serg.  &  R.   (Pa.)   219 229 

Commonwealth   v.   Perry,    139   Mass.    198 208 

Commonwealth  v.  Pittston  Ferry  Bridge  Co.,  148  Pa.  St.  621 250 

Commonwealth  v.  Reed,  34  Pa.  275 67 

Commonwealth  v.  Ruggles,  10  Mass.  391 276 

Commonwealth  v.  Rush,  14  Pa.  186 233 

Commonwealth  v.  Rush   (Pa.) ,  11  Lane.  L.  Rev.  97 14 

Commonwealth  v.  Tolman,   149   Mass.  229 371 

Commonwealth  v.  Tucker,  2  Pick.   (Mass.)   44 239 

Commonwealth  v.  Upton,  6  Gray  (Mass.) ,  473 50,  54,  128 

Commonwealth  v.  Vermont  &  M.  R.  Co.,  4  Gray  (Mass.),  22 246 

Commonwealth  v.  Wescott,  4  Pa.  C.  P.  58 120 

Commonwealth  v.  Wilkes-Barre  &  K.  S.  R.  Co.,  127  Pa.  278 242 

Commonwealth  v.  Yost,  197  Pa.  St.  171 283 

Commonwealth  v.  Yost,  12  York  Leg.  Rec.  149 477 

Commonwealth  v.  Yost,   11   Pa.   Super.  Ct.  323 53,286,314,345,  400 

Commonwealth  v.  Walsh,   165  Mass.   62 473 

Comstrum  v.  Minneapolis  St.  Ry.  Co.,  33  Minn.  516 416 

Condon  v.  Sprigg,  78  Nd.  330 230 

Congregation  Beth  Israel  v.  O'Connell,   187  Mass.  236 205 

Congreve  v.  Morgan,  18  N.  Y.  84 230 

Congreve  v.  Smith,  18  N.  Y.  79 46,217,  230 

Congreve  v.  Standard  Oil  Co.,  54  Hun  (N.  Y.),  44 230 

Conhocton  Stone  Road  v.  Buffalo,  N.  Y.  &  Erie  Ry.  Co.,  51  N.  Y.  573.. 456,  457 

Conner  v.  Hall,   89   Ga.  257 447 

Consolidated  Elec.  L.  &  P.  Co.  v.  Healy,  65  Kan.  798 258 

Cook  v.  Anderson,  85  Ala.  99 383,  386,  38S 

Cook  v.  Bellack,  109  Wis.  321 239 

Cook  v.   Benson,   62   Iowa,    170 400 

Cook   v.    Charlestown,    98   Mass.    80 255 

Cook  v.  Covill,  18  Hun   (N.  Y.),  288 241 

Cooke  v.  Forbes,  L.  R.  5  Eq.  Cas.   166 24,  146 

Cooke  v.  Forbes,  37  L.  J.  Ch.  178 26,  85 

Cooley  v.  Lancaster,  81  Ky.  171 486 

Coonley  v.  Albany,  132  N.  Y.   145 273 

Cooper  v.  Cedar  Rapids,   112  Iowa,  367 2S0 

Cooper  v.  Hall,  5  Ham.    (Ohio)    320 3,  407 

Cooper  v.  Randall,  59  111.  317 86,  SS 

Cooper  v.  Randall,  53   111.   24 19,  20,  39,  4S1 

Cooper  v.  Schultz,  32  How.  Prac.    (N.  Y.)    107,   135 127 

Coosaw  Mining  Co.  v.  South  Carolina,  144  U.  S.  550 437 

Corby  v.  Chicago,  R.  I.  &  P.  R.  Co.,  150  Mo.  457 436 

xxxix 


Table  of  Cases. 

Sec. 

( lordee  v.  Miller,  3i>  Mich.  581 343 

i  orey  v.  Borough  of  Edgewood,  18  Pa.  Super.  Ct.  21G 378 

y    v.    Lancaster,   81    Ky.    171 485 

Cornell  v.  New   i'ork,  20  N.  Y.  Supp.  314 158 

(  ornea  V.   Harris,  1  N.  Y.  223 360 

I  .a  nick  v.  Arthur,  Tex.  Civ.  App.  73  S.  W.  410 265 

igan  v.  Elsinger,  81  Minn.  42 472 

C  orthell  v.  Holmes,   88  Mo.  376,  380 214 

Costello  v.  Pomeroy,  120  Iowa,  213 297 

Costello  v.   State,   108   Ala.   45 214, 229,  258 

Cosulich  v.  The  Standard  Oil  Co.  of  N.  Y.,  122  N.  Y.  118 382 

Couhocton  Stone  Road  Co.  v.  Buffalo,  N.  Y.  &  E.  R.  R.  Co.,  3  Hun  (N. 

Y.),   523    69 

Council  of  Montgomery  v.  Hutchinson,  13  Ala.  573 333 

Councils  of  Reading  v.  Commonwealth,  11  Pa.  196 72 

Countryman  v.  Lighthill,  24  Hun.  405 411 

County  of,  see  Name  of  County. 

Coverdale  v.   Edwards,   155   Ind.  374 372 

Covert  v.  Cranford,  141  N.  Y.  521,  526 454 

Covington  &  Cincinnati  Bridge  Co.  v.  Kentucky,  154  U.  S.  204 274 

Covington  &  Cincinnati  Bridge  Co.  v.  Steinbrock  (Ohio),  76  Am.  St.  Rep. 

375 472 

Cox  v.  Essenden   (Australia),  27  Chicago  Leg.  News,  33 286 

Cox  v.  State,  3  Blackf.    (Ind.)    193 273 

Coyne  v.  Mississippi  &  R.  R.  Boom  Co.,  72  Minn.  533 272 

Cowes  v.  Harris,  1  N.  Y.   (1  Comst.)  223 444 

Craig  v.  Crafton  Water  Co.,  141  Cal.  178 265 

Craig  v.  Worthniueller,  78  Iowa,  598 82,  372,  399 

Crane  Co.  v.  Stamers,  83  111.  App.  329 14,  135,  422,  428  436 

Cranford  v.  Tyrell,    128   N.   Y.   341 366,  391 

Crawford   v.   Atglen  Axle  &  Iron   Mfg.   Co.,    1   Chest.   Co.   Rep.    (Pa.) 

412 1,   2,  27,  363,  418 

Crawford  v.  Delaware,   7  Ohio   St.  459 329 

Crippen  v.  People,  8  Mich.  117 416 

Crommelin  v.  Coxe,  30  Ala.  318 43,  422,  444,  456,  457,  486 

Cromwell  v.  Lawe,  14  Ind.  234 416 

Crooke  v.  Anderson,  23  Hun   (N.  Y.),  266 240 

Crookston  Waterworks  Power  &  Light  Co.  v.  Sprague,  91  Minn.  461 ...  .  272 

Cropsey  v.  Murphy,   1   Hilt.    (N.  Y.)    126 2,9,19,39,40,116,157,  158 

Crosby  v.  Bessey,  49  Me.   539 56,  57 

Crosly  v.  Warren,  1  Rich.  L.   (S.  C.)   385 197 

Crossland  v.  .Borough  of  Pottsville,  126  Pa.  511 475 


Table  of  Cases. 

Sec. 

Crossley  v.  Lightowler,  36  L.  J.  Ch.  584 47^ 

Crouse  v.  Miller,  19  Pa.  Super.  Ct.  384 239 

Crowley  v.  Rochester  Fireworks  Co.,  95  App.  Div.  (N.  Y.)   13..  258,  383,  385 

Crump  v.  Lambert,  17  L.  T.    (N.  S.)    133 135 

Crump  v.  Lambert,  L.  R.  3  Eq.  Cas.  409 2,  19,  20,  38,  136,  137 

Cuff  v.  Newark,  etc.,  R.  R.  Co.,  35  N.  J.  L.  17 386 

Culver  v.  Ragan,  8  Ohio  C.  D.  125 140 

Cumberland  &  O.  C.  Corp.  v.  Hitchings,  65  Me.  140 24,  459,  494 

Cumberland  Teleph.  &  Teleg.  Co.  v.  United  Elect.  R.  Co.,  42  Fed.  2S0. .  .  3S2 

Cummings  v.  Chicago,   1S8  U.  S.  410 274,  275 

Cummings  v.  St.  Louis,  90  Mo.  259 422,  432 

Cummings  v.  Toledo,  12  Ohio  C.  C.  650 279 

Cummins  v.   Seymour,  79  Ind.  491 293 

(  ummins  v.   Spruance,  4  Harr.    ( Del. )    315 273 

Cummins  v.  Summunduwot  Lodge,  9  Kan.  App.  153 78 

Cunningham  v.  Clay  Turp.    (Kan..  1904) ,   76  Pac.  907 264 

Cunningham   v.   Stein,    109   111.   375 4S9 

Currier  v.  West  Side  E.  P.  R.  Co.  Fed.  Cas.  No.  3493 G9 

Curtis  v.  Winslow,  38  Vt.  690 204 

Cushing  v.  Bedford,   125  Mass.  526 307 

Cushing  v.  Board  of  Health.  13  N.  Y.  St.  R.  783 4S7 

Czarniecki's  Appeal    (Pa. ) ,  11  Atl.  660 103 

Dallas  v.  Ladies'  Decorative  Art  Club  of  Phila.,  4  Pa.  Co.  Ct.  340.  .  .184,  415 

Dalton  v.  Cleveland,  C,  C.  &  St.  L.  R.  Co.,  144  Ind.  121 419 

Dalton  v.  Wilson,  118  Ga.   100 264,  279,  354,  358 

Dana  v.  Valentine.  5  Mete.    (Mass.)    8 40,  55,  57,  415,  417 

Danbury  &  Norwalk  Rd.  Co.  v.  Town  of  Norwalk,  37  Conn.  109.  .279,  2S5,  316 

Daneri  v.  Southern  Cal.  R.  Co.,   122   Cal.  507 4S5 

Daniel  Ball,  The,  10  Wall.    (U.  S.)   557 272 

Daniel  v.  Fort  Worth  &  R.  G.  Ry.  Co.,  96  Tex.  327 40,  489 

Daniels  v.  Keokuk  Water  Works,  61   Iowa,  549 69 

Danker  v.  Goodwin  Mfg.  Co..  102  Mo.  App.  723 157 

Dantzer  v.  Indianapolis  Union  Ry.  Co.,  141  Ind.  604 21S,  222 

Danville,  Hazelton  &  W.  R.  Co.  v.  Commonwealth.  73  Pa.  29 70 

Darcantel  v.  People's  Slaughter-House  &  R.  Co.,  44  La.  Ann.  632.  .  .  .79,  340 

Dargin  v.  Wadhill,  31  N.  C.  244 34 

Darst  v.  People.  51   111.  286 339,  346,  372 

Daughtry  v.   Warren.  85   N.   C.   136 484 

Davenger  v.  Chicago  &  G.  T.  R.  Co.,  98  Ind.  153 70 

Davidson  v.  Isham,  9  N.  J.  Eq.  1S6 19,  166,  174, 176,  415,  446 

Davie  v.  Levy,  39  La.  Ann.  551 472 


Table  of  Cases. 

Sec. 

Davie  v.  Montreal  Water  &  Power  Co.  Rap.  Jud.  Que.,  23  Can.  S.  141 . .  76,  85 

Davis  v.  Adkins,   18  Ky.  L.  Rep.  73 419 

Davis  v.  Auld,  96  Me.  559 438 

Davis  \.  Baltimore  &  Ohio  R.  Co.  (Md.),  62  Atl.  572 425 

Davis  v.   Davis,  40  W.  Va.  464 123 

Davis  v.  Lamberton,  56  Barb.  480 415 

Davis   v.   Mills,   194  U.   S.  451 299,365,366,367,399,416,  436 

Davis  v.   .Montgomery,  51   Ala.   139 357,  358 

Davis  v.  New  York,  14  N.  Y.  524 292,  332 

Davis  v.  Niagara  Falls  Tower  Co.,  171  N.  Y.  336 85 

Davis  v.  Niagara  Falls  Tower  Co.,  49  N.  Y.  Supp.  554 453 

Davis  v.   Sawyer,    133  Mass.   289 174,  179 

Davis  v.  Suinmerfield,  133  N.  C.  325 472 

Davis  v.  Whitney,  68  N.  H.  66 93 

Dawson  v.  Durham  &  Brown,  74  N.  C.  767 315 

Dawson  v.  McMillan,  34  Wash.  269 272,  422 

Dawson  v.  St.  Paul  Fire  Ins.  Co.,  15  Minn.   136 218 

Day  v.  Day,  4  Md.  262,  270 .' 369 

Dayton  v.  Pease,  4  Ohio  St.  80 329 

Deaconess  Home  and  Hospital  v.  Bontjes,  207  111.  553 415 

Deaconess  Home  and  Hospital  v.  Bontjes,  104  111.  App.  484 356,  397,  415 

416,  417,  450,  485 

De  Blanc  v.  New  Iberia,  106  La.  680 71 

Debs,  In  re.,  158  U.  S.  564 368 

De  Costa  v.  Massachusetts  Flat  W.  &  M.  Co.,  17  Cal.  613 501 

De  Give  v.  Seltzer,  64  Ga.  423 487 

DeLaney  v.  Blizzard,  7  Hun,  7 422 

Delaware  &  Hudson  C.  Co.  v.  Lawrence,  2  Hun  (N.  Y.),  163 60,  65 

Delaware  &  Hudson  Canal  Co.  v.  Torrey,  33  Pa.  143 39 

Delaware  &  Raritan  Canal  Co.  v.  Lee,  22  N.  J.  L.  243 67 

Delaware  Div.  Can.  Co.  v.  Commonwealth,  60  Pa.  St.  367 305 

Delaware  &  \V.  R.  R.  Co.  v.  Buffalo,  158  N.  Y.  266 250 

Delaware,  L.  &  W.  R.  Co.  v.  Buffalo,  4  App.  Div.   (N.  Y.),  562 243,  250 

Demarest  v.  Hardhan,  34  N.  J.  Eq.  469 187,  446 

Demby  v.  Kingston,  14  N.  Y.  Supp.  601 280,  443 

Demby  v.  Kingston,  38  N.  Y.  St.  R.  42 445 

Demopolis  v.  Webb.  87  Ala.  659 239,  240 

Den  v.  Jersey  City,  15  How.  (U.  S.),  426 272 

Dennis  v.  Eckhardt,  3  Grant  Cas.   (Pa.) ,  390 10,  24,  99,  175 

Dennis  v.  Mobile  &  M.  Ry.  Co.,  137  Ala.  649 234,  415 

Dennis  v.  State,  91  Ind.  291 130 

Densby  v.  Kingston,  14  N.  Y.  Supp.  601 280,  443 

xlii 


Table  of  Cases. 

Seo 

Densmore  v.  Central  I.  R.  Co.,  72  Iowa,  182 147 

Denver  v.  Denver  &  S.  F.  R.  Co.,  17  Colo.  583 242 

Denver  v.  Mullen,  7  Colo.  345 318,  346,  368 

Denver  v.  Porter,  126  Fed.  288 279,  355 

Denver  &  S.  Ry.  Co.  v.  Denver  City  Ry.  Co.,  2  Colo.  673 246 

Denver  &  S.  F.  Ry.  Co.  v.  Domke,  11  Colo.  274 80 

Depew  v.  The  Board  of  Trustees  of  Erie  &  Wabash  Canal,  5  Ind.  8 273 

Depierris  v.  Mattern,  10  N.  Y.  Supp.  626 43,  419 

Des  Moines  v.  Gilchrist,  67  Iowa,  210 343 

Des  Plaines  v.  Poyer,  123  111.  348 332,  339,  414 

Detroit  Water  Comr's.  v.  Detroit,  117  Mich.  458 273,  436 

De  Vaughn  v.  Minor,  77  Ga.  809 327,  422,  436 

Dewey  Hotel  Co.  v.  United  States  Elec.  Co.,  17  App.  D.  C.  356 429 

Deysher  v.  Reading,  18  Pa.  Co.  Ct.  611 411 

Dickey  v.  Maine  Teleg.  Co.,  46  Me.  483 214 

Dickson'  v.  McCoy,  39  N.  Y.  400 194 

Dieringer  v.  Wehrraan,  12  Weekly  Law  Bull.    (Ohio),  222 490 

Dierks  v.  Addison  Twp.  Highway  Comrs.,  142  111.  107 286,  302,  417 

Dieter  v.  Estill,  95   Ga.   370 452,  476 

Dietrict  v.   Schreman,   117  Mich.  298 274 

Dillon  v.  Acme  Oil  Co.,  2  N.  Y.  Supp.  289 314 

Dilworth,  Appeal  of,  91  Pa.  247 384,  385 

Dimes  v.  Petley,   15  Ad.  &  El.  276 370 

Dimmett  v.  Eskridge,  6  Munf.   (Va.),  308 214 

Dimon  v.  Shewan,  34  Misc.  R.  72 422 

District  Attorney  v.  Lynn  &  B.  R.  Co.,  16  Gray   (Mass.),  242 246,  438 

Dittman  v.  Repp,  50  Md.  516 20,  140,  174,  188 

Dixon  v.  Brooklyn  City  &  N.  R.  Co.,  100  N.  Y.  170 251 

Doellner  v.  Tynan,  38  How.  Prac.    (N.  Y.),  176 98 

Dolan  v.  Chicago,  M.  &  St.  P.  R.  Co.,  118  Wis.  362 71,  209 

Donavan  v.  Ames.     See  Dorman  v.  Ames. 

Donnaher  v.  State,  8  Sm.  &  M.    (Miss.),  649 263 

Doremus  v.  Paterson,  65  N.  o.  Eq.  711 443,  446 

Doremus  v.  Mayor  (N.  J.  E.  1905),  62  Atl.  3,  4 477,  504 

Dorgan  v.  Waddill,  31  N.  C.  244 200,  201 

Dorman  v.  Ames,  12  Minn.  451 20,  39,  454,  475,  494 

Dorrance  v.  Simons,  2  Root   ( Conn. ) ,  208 487 

Dorsey  v.  Allen,  85  N.  C.  358 181,  41!? 

Dosh  v.  U.  S.  Exp.  Co.   (Iowa) ,  99  N.  W.  298 416 

Dosh  v.  United  States  Exp.  Co.   (Iowa) ,  93  N.  W.  571 473 

Douglass  v.  State,  4  Wis.  387 320,     478 

Dover  v.  Portsmouth  Bridge,  17  N.  IT.  200 274,  415,  429,  430,     439 

xliii 


Table  of  Cases. 

Sec. 

Downing  v.  Elliott,  182  Mass.  28 137,  146,  162 

Downing  v.  Oskaloosa,  86  Iowa  352 362 

Doyle  v.  Lord,  64  N.  Y.  432 36 

Drake  v.  Chicago,  R.  I.  &  P.  R.  Co.,  63  Iowa,  302 457 

Drake  v.  Hudson  River  R.  R.  Co.,  8  Barb.   (N.  Y.),  509 78 

Drake  v.  Hudson  River  Railroad  Co.,  7  Barb.   (X.  Y.),  508,  548 61 

Drake  v.  Lady  Ensley  Coal,  Iron  &  R.  Co.,  102  Ala.  501 277,  329,  361 

Draper  v.  Mackey,  35  Ark.  497 220,  216 

Dreher  v.  Yates,  43  N.  J.  L.  473 254 

Drew  v.  Hicks    (Cal.   1894),  35  Pae.  563 55 

Dries  v.  St.  Joseph,  98  Mo.  App.  611 408 

Driscoll  v.  Carlin,  50  N.  J.  L.  28 217 

Drysdale  v.  Dugas  Rap.  Jud.  Que.,  6  Q.  B.  278 201 

Drysdale  v.  Dugas,  26  Can.  S.  C.  20 202 

Dubach  v.  Hannibal  &  St.  J.  R.  Co.,  89  Mo.  483 70 

Dubois  v.  Budlong,  10  Bosw.   (N.  Y. ) ,  70 208 

Dubois  v.  Budlong,  15  Abb.  Prac.  (X.  Y.)  445 126 

Dubos  v.  Dreyfous,  52  La.  Ann.  1117 210 

Ducktown  Sulphur,  Copper  &  I.  Co.  v.  Barnes   (Tenn.   1900),  60  S.  W. 

593 56,    157,    161,    167,  170 

Ducktown  Sulphur,  Copper  &  Iron  Co.  v.  Fain,  109  Tenn.  56 415 

Dudley  v.  Buffalo  73  Minn.  347 279 

Dudley  v.  Xew  Britain,  77  Conn.  322 329 

Duffy  v.  Meadows  Co.,  131  X.  C.  31 162 

Duke  v.  Eastern  Distilling  Co.,  51  Hun,  605 460 

Dumesnil  v.  Dupont,  18  B.  Mou.  800 385,  415 

Duinois  v.  Hill,  2  App.  Div.    (X.  Y.),  525 490 

Dumois  v.  Xew  York  City,  76  X.  Y.  Supp.  161 445,  448 

Dunbar  v.  Augusta,  90  Ga.  390 352 

Duncan  v.  Hayes,  22  X.  J.  Eq.  25 415,  416,  419 

Dunlap  v.  Snyder,  17  Barb.   (X.  Y.),  561 192 

Dunn  v.  Austin,  77  Tex.   139 353,  393 

Dunn  v.  Cooper,  208  111.   391 312 

Dunn  v.  Hamilton,  2  S.  &  McL.  350 265 

Dunning  v.  City  of  Aurora,  40  111.  481 417 

Dunsbach  v.  Hollister,  49  Hun    (X.  Y.).  352 33,  35,  44,  92,  99,  455 

Dunsbach  v.  Hollister,  2  X.  Y.  Supp.  94 409 

Ihinsmore  v.  Central  Iowa  Ry.  Co.,  72  Iowa,  182 75 

Durango  v.  Chapman,  27   Colo.   169 304,  480 

Durant  v.  Williamson.  7  X.  J.  Eq.  547 417 

Durrant  v.  Branksome  Urban  Council,  46  W.  R.   (C.  A.),  134 316 

Durrant  v.  Branksome  Urban  Council,  76  Law  T.  R.  739 311 


Table  of  Cases. 

Sec. 

Dutton  v.  Strong,  1  Black   (U.  S.)   23,  33 65 

Dwight  v.  Hayes,  150  111.  273 286,  417,  485 

Dwinger  v.  Chicago  &  G.  T.  Ry.  Co.,  98  Ind.  153 425a 

Dyche  v.  Weichselbaum,  9  Kan.  App.  360 222 

Dygert  v.  Schenck,  23  Wend.   (N.  Y.),  446 50 

Dzik  v.  Bigelow,  ?7  Pitts.  L.  J.  N.  S.  360 273 

Earp  v.  Lee,  71  111.  193,  195 6,  14,  368,  377 

Eason  v.  Perkins,  17  N.  C.  38 49 

East  Haven  v.  Hemingway,  7  Conn.   186,  201 65 

East  Hoquiam  Boom  &  L.  Co.  v.  Neeson,  20  Wash.  142 272 

East  Jersey  Water  Co.  v.  Bigelow,  60  N.  J.  L.  201 312,  454 

Eastlock  v.  Local  Board  of  Health  (N.  J.),  52  Atl.  999 466 

Eastman  v.  Amoskeag  Mfg.  Co.,  47  N.  H.  71 417 

Eastman  v.  Amoskeag  Mfg.  Co.,  44  N.  H.  143 443,  445,  454 

Eastman  v.  St.  Anthony  Falls  Water  Power  Co.,  12  Minn.  137 453 

Easton  &  A.  R.  Co.  v.  Central  R.  Co.,  52  N.  J.  L.  267 422,  496 

East  Tennessee  G.  R.  Co.  v.  Boardman,  96  Ga.  356 218 

Eaton  v.  People,  30  Colo.  345 316,  366 

Eau  Claire  v.  Matzke,  86  Wis.  291 239 

Eavans  v.  Bacon   (Wis.),  95  K  W.  375 205 

Ecton  v.  Lexington  &  E.  R.  Co.,  21  Ky.  L.  Rep.  921 317 

Edgar  v.  Walker,  106  Ga.  455 316 

Edmundson  v.  Moberly,  98  Mo.  523 289 

Egan  v.  Hart,  165  U.  S.  188 274 

Egerton  v.  Brownlow,  4  H.  L.  Cas.  195 11 

Eichenlaub  v.  St.  Joseph,  113  Mo.  395 343 

Eidmiller  Ice  Co.  v.  Guthrie,  42  Neb.  254 425 

Eilenbecker  v.  Plymouth  County  Dist.  Ct.,  134  U.  S.  31 399 

Eisenback  v.  Hatfield,  2  Wash.  St.  236,  249 63,  65,  275 

Eisenmerger  v.  St.  Paul  Water  Board,  44  Minn.  457 278 

Elder  v.  Lykens  Valley  Coal  Co.,  157  Pa.  St.  490 487 

Eldert  v.  Long  Island  Elec.  R.  Co.,  165  N.  Y.  651 250 

Electric  Construction  Co.  v.  Heffernan,  34  N.  Y.  St.  R.  436 378 

Electric  Improvement  Co.  v.  San  Francisco,  City  and  County,  45  Fed.  593.  339 

Elizabethtown,  L.  &  B.  S.  R.  Co.  v.  Combs,  10  Bush  (Ky.),  382.  .24,  40,  495 

Eller  v.  Koehler,  68  Ohio  St.  51 1,  9,  16,  19,  22,  38,  96,  190 

Elliotson  v.  Feetham,  2  Bing.    (N.   C),   134 49,  54 

Elliott  v.  Ferguson    (Tex.  Civ.  App.),  83   S.  W.  56 393 

Elliott  v.  Fitchburg  R.  R.  Co.,  10  Cush.   (Mass.),  191 270 

Ellis  v.  Academy  of  Music,  120  Pa.  608 3,  404 

Ellis  v.   Clemens,   21   Ont.  227 312 

Ellis  v.  Kansas  City,  St.  J.  &  C.  B.  R.  Co.,  63  Mo.  131 2,  6,  9,  444,  445 


Table  of  Cases. 

Sec. 

Ellison  v.  Washington  County  Comr's.,  58  N.  C.  57 393,  415 

Ellsworth  v.  Putnam,  1G  Barb.  505 360 

Elmhirst  v.  Spencer,  2  Mac.  &  G.  45 298,  303 

Ely  v.  St.  Louis,    1 8 1    Mo.  724 279 

Ely  v.  Supervisors  of  Niagara  County,  36  N.  Y.  273 350,  391 

Elyria  v.  Lake  Shore  &  M.  S.  Ry.  Co.,  23  Ohio  Cir.  R.  482 250 

Emory  v.  Hazard  Powder  Co.,  22  S.  C.  476 364,  384 

Emory  v.  Lowell,  109  Mass.  197 490 

English  v.  Progress  Electric  Light  &  M.  Co.,  95  Ala.  259 88,  90 

Ennis  v.  Gilder,  32  Tex.  Civ.  App.  351 80,  313,  323,  416 

Esburg-Gunst  Cigar  Co.  v.  Portland,  34  Greg.  282 279 

Escanaba  v.  Chicago,  107  U.  S.  678 272,  326 

Esser  v.  Wattier,  25  Or.  7 419 

El  t  v.  Snyder,  5  Ohio  Dec.  523 430 

Eufaula  v.  Simmons,  86  Ala.  575 41,  490 

Kuler  v.  Sullivan,  75  Md.   616 137,   140,  142 

Evans  v.  Reading  Chemical  F.  Co.,  160  Pa.  209 24,  118,  158 

Evans  v.  Savannah  &  W.  R.  Co.,  90  Ala.  54 70 

Evans  v.  Wilmington  &  W.  R.  Co.,  96  N.  C.  45 396,  476 

Evansville  v.   Miller,    146  Ind.  613 332,  342 

K\  ansville  &  Terre  Haute  R.  R.  Co.  v.  Carvener,  113  Ind.  51 217 

Evansville  C.  R.  Co.  v.  Dick,  9  Ind.  433 450 

Everett  v.  Council  Bluffs,  46  Iowa,  66 252,  332 

Everett  v.   Marquette,  53  Mich.  450 78 

Ex  parte.     See  name. 

Fairbanks  v.  Kerr,  70  Pa.  St.  86 258 

Fairbanks  Co.  v.  Bahre,  213  111.  636 170 

Fairbanks  Co.  v.  Nicolai,  167  111.  242 170 

Fail  play  Hydraulic  Min.  Co.  v.  Weston,  29  Colo.  125 277 

Fallon  v.  O'Brien,  12  R.  I.  518 194 

lalloon  v.  Schilling,  29   Kan.  292 31,  43 

Falls  Mfg.  Co.  v.  Oconto  River  Imp.  Co.,  87  Wis.  134 272 

Fancher  v.  Grass,  60  Iowa,   505 107 

Fa  acher  v.  Trudel,  71  N.  H.  621 107 

i  arley  v.  Gate  City  Gaslight  Co.,  105  Ga.  323 476,  498 

Farmer's  Co-op.  Mfg.  Co.  v.  Albemarle  &  R.  R.  Co.,  117  N.  C.  579.  .  .422,  428 

430,  433 

Farmers  of  Hempstead  Water,  12  Mod.  510 17,  39 

Farrell  v.  Cook,  16  Neb.  483 3,  11,  196 

Farrell  v.  Mayor  of  X.  Y.,  5  N.  Y.  Supp.  580 448 

Farrell  v.  New  York  Steam  Co.,  23  Misc.  R.  (N.  Y),  726 88 

xlvi 


Table  of  Cases. 

Sec. 

Farver  v.  American  Car  &  Foundry  Co.,  24  Pa.  Super.  Ct.  579 135,  156 

Faulkenbury  v.  Wells   (Tex.  Civ.  App.),  68  S.  W.  327 113,  486 

Faust  v.  Passenger  Ry.  Co.,  3  Phila.   (Pa.),  164 246 

Fay  v.  Prentice,  1  Mann.  Gr.  &  S.  828 39 

Fay  v.  Whitman,  100  Mass.  76 24,   127,  162 

Feeney  v.  Bartoldo  (N.  J.  Eq.),  30  Atl.  1101 409 

Feldman  v.  Sellig,  110  111.  App.  131 192 

Felhauer  v.  City  of  St.  Louis,  178  Mo.  635 463,  466,  468 

Felton  v.  Ackerman,  61  Fed.  225,  228 240 

Fenter  v.  Toledo,  St.  L.  &  K.  C.  R.  Co.,  29  111.  App.  250 456,  457,  485 

Ferguson  v.  Firmenich  Mfg.  Co.,  77  Iowa,  576.  ...  .  .  .142,  266,  329,  477,  480 

Ferguson  v.  Salma,  43  Ala.  398 349 

Ferman  v.  Lombard  Invest.  Co.,  26  Minn.  166 457 

Ferrelly  v.  Cincinnati,  2  Disn.  516 429 

Fertilizer  v.  Malonee,  73  Md.  268 38 

Fertilizing  Co.  v.  Hyde  Park,  97  U.  S.  659 348 

Fettman  v.  Hencken  &  Willenbreck  Co.  (N.  Y.  Sup.),  91  N.  Y.  Supp.  773,  192 

Field  v.  West  Orange,  36  N.  J.  Eq.  118 448 

Fields  v.  Stokley,  99  Pa.  St.  306 350 

Fifty  Associates  v.  Tudor,  6  Gray   (Mass.),  255 36 

Filbert  v.  Dechert,  22  Pa.  Super.  Ct.  36 265 

Filson  v.  Crawford  (N.  Y.  Sup.),  5  N.  Y.  Supp.  882 201,  202,  205 

Finch  v.  Green,   16  Minn.  355 43 

Finegan  v.  Allen,  46  111.  App.  553 119 

Finkelstein  v.  Huner,  1-79  N.  \.  548 457 

Finkelstein  v.  Huner,  79  N.  Y.  Supp.  334 406 

Finley  v.  Herschey,  41   Iowa,  389 378 

First  Baptist  Church  in  Schenectady  v.  Utica  &  Schenectady  R.  Co.,  6 

Barb.    (N.  Y.),  313 442 

First  Baptist  Church  v.   Schenectady  &   Troy   R.   R.   Co.,   5   Barb.    (N. 

Y.),    79 75,  442 

First  Municipality  of  New  Orleans  v.  Blineau,  3  La.  Ann.  688 335 

First  National  Bank  v.  Tyson,  133  Ala.  459 212,  214,  218,  220,  233 

234,  260 

First  National  Bank  of  Montgomery  v.  Tyson,  39  So.  560 424 

Fischer  v.  St.  Louis,  194  U.  S.  361 335 

Fish  v.  Dodge,  4  Denio   (N.  Y.) ,  311 19,  37,  96,  99,  454,  462,  460 

Fisher  v.  American  Reduction  Co.,  189  Pa.  419 436 

Fisher  v.  Clark,  41  Barb.    (N.  Y.),  329 39,  193 

Fisher  v.  Feige,  137  Cal.  39 310 

Fisher  v.  McGirr,  1  Gray   (Mass.) ,  1 81 

Fisher  v.  Sanford,  12  Pa.  Super.  Ct.  435. .  ." 200,  211 

xlvii 


Table  of  Cases. 

Sec. 

Fisher  v.  Thirkell,  21  Mich.  1 231,  470 

Fisher  v.   Weinhelzer,  91  Minn.  22 192 

Fisher  v.  Zumwalt,  128  Cal.  493 4,  14,  157,  168,  424 

Fisk  v.  Wilber,  7  Barb.  705 363,  418 

Fitzgerald  v.  Firbank,  66  L.  J.  Ch.  N.  S.  529 276 

Flaherty  v.  Moran,  81  Mich.  52 37,  43,  404 

Fleischner  v.  Citizens'  Real  Est.  &  Invest.  Co.,  25  Oreg.  119,  126. .    .382,  416 

462,  470 

Fleming  v.  Hislop,  11  App.  Cas.  686,  697 2 

Fletcher  v.  Auburn  &  S.  R.  Co.,  25  Wend.   (N.  Y.),  463 242 

Fletcher  v.  Rylands,  1   Exch.  265 27,  382 

Flight  v.  Thomas,  10  Ad.  &  El.  590 55,     57 

Flint  v.  Russel,  Fed.  Cas.  No.  4,876,  5  Dill.  151 200,  205 

Flood  v.  Consumers'  Co.,  105  111.  App.  559 22,  40,  41,  415,  416,  417,  419 

Flynn  v.  Butler  (Mass.  1905),  75  N.  E.  730 384 

Flynn  v.  Taylor,  127  N.  Y.  590 223 

Flynn  v.  Taylor,  53  Hun    (N.  Y.),  167 220 

Fogarty  v.  Junction  City  Pressed  Brick  Co.,  50  Kan.  478 158,  485 

Fogg  v.  Nevada  C.  O.  R.  Co.,  20  Nev.  429 430,  432,  436 

Foot  v.  Burlington  Water  Co.,  94  Iowa,  89 76 

Foote,  ex  parte,  70  Ark.  12 5,  15 

Ford  v.  Warner  Co.,  1  Marv.   (Del.) ,  88 247 

Fort  Plain  Bridge  Co.  v.  Smith,  30  N.  Y.  44 370 

Fort  Worth  v.  Crawford,  74  Tex.  404 136,  157,  166,  169,   170,  355,  357 

Ft.  Worth  &  D.  C.  Ry.  V.  Beauchamp,  95  Tex.  496 258 

Ft.  Worth  &  D.  C.  R.  Co.  v.  Scott,  2  Wils.  Civ.  Cas.  Ch.  App.,  !   140 476 

Ft.  Worth  &  R.  G.  R.  Co.  v.  Glenn,  97  Tex.  586 444 

Foshay  v.  Glen  Haven,  25  Wis.  288 255 

Fossen  v.  Clark,  113  Iowa,  86 485 

Fossin  v.  Landry,  123  Ind.  136,  236 422,  432 

Foster  v.  Manchester,  89  Va.  92 216 

Foster  v.  Norton,  2  Ohio  Dec.  390 417,  484 

Fox  v.  Buffalo  Park,  21  N.  Y.  App.  Div.  321 464 

Fox  v.  Fostoria,  S  Ohio  C.  Dec.  39 319 

Fox  v.  Philadelphia,  208  Pa.  127 27» 

Frammell  v.  Little,  16  Ind.  251 192 

Francis  v.  Johnson   (Iowa),  101  N.  W.  873 472 

Francis  v.  Schoelkopf,  52  N.  Y.  152,  155 14.  41,  116,  170,  428,  443 

486,  490,  493 

Francklyn  v.  People's  Heat  &  L.  Co.,  32  N.  S.  44 71,  485 

Frank  v.  Atlantic,  72  Ga.  428,  432 346 

Frank  v.  New  Orleans  &  C.  R.  Co.,  30  La.  Ann.  25 490 

xlviii 


Table  of  Cases. 

Sec. 

Frankfort  v.  Commonwealth,  25  Ky.  L.  Rep.  311 279,  358 

Franklin  Wharf  Co.  v.  Portland,  67  Me.  46 295,  431,  448 

Frazee,  Matter  of,  63  Mich.  396 337 

Frazer  v.  Chicago,  186  111.  480 356 

Frederick  v.  Cook,  4  Ga.  241 321 

Frendenstein  v.  Heine,  6  Mo.  App.  287 3!) 

Fresno  v.  Fresno  Canal  &  Irrigation  Co.,  98  Cal.  179 307,  348 

Friedlander  v.  Delaware  &  H.  Canal  Co.,  13  N.  Y.  Suppl.  323 258 

Friedman  v.  Columbia  Machine  Works,  99  App.  Div.   (N.  Y.),  504.  .  .135,  143 

Frink  v.  Lawrence,  20  Conn.  117 275,  422,  430,  433 

Fritsche  v.  Clemow,   109  111.  App.  355 192 

Frizzle  v.  Patrick,  59  N.  C.  354 , 417,  430 

Froelicher  v.  Oswald  Ironworks,  111  La.  705,  708 174,  183 

Frost  v.  Berkeley  Phosphate  Co.,  42  S.  C.  402 89,  164,  167,  382 

Frost  v.  Portland,   11  Me.  271 264 

Frostburg  v.  Duffy,  70  Md.  47 281,  329 

Fuel  Co.  v.  Andrews,  50  Ohio,  695 385 

Fulham  Vestry  v.  London  County  Council   ( 1897),  2  Q.  B.  76 372 

Fuller  v.  Chicago  R.  T.  &  P.  Ry.  Co.,  61  Iowa,  125 410 

Fuselier  v.  Spalding,  2  La.  Ann.  773 Ill 

Gaines  v.  Waters,  64  Ark.  609 331 

Gale  v.  Abbott,  6  L.  T.  R.  N.  S.  852 36 

Gale  v.  Abbott,  8  Jur.  N.  S.  987 58 

Gale  v.  Rochester,  71  N.  Y.  Supp.  986 286 

Gallagher  v.  Dodge,  48   Conn.  387 43,  105 

Gallagher  v.  Flury,  99  Md.  181 204,  205,  210,  419 

Gardner  v.  Heartt,  2  Barb.   ( N.  Y. ) ,  265 28,  32 

Gardner  v.  Newburgh,  2  Johns.  Ch.  162 329,  417 

Gardner  v.  Stroever,  89  Cal.  26 4 

Gared  v.  Martyn,  19  C.  B.  N.  S.  732 328 

Garibaldi  v.  O'Connor,  210  111.  284 212,  223 

Garitee  v.  Baltimore,  53  Md.  422 436 

Garland  v.  Aurin,  103  Tenn.  555 443,  444  445 

Garland  v.  Town,  55  N.  H.  55 237  3S2 

Garlich  v.  Dorsey,  48  Ala.  222 192 

Garnett  v.  Jacksonville  St.  A.  &  H.  R.  Ry.  Co.,  20  Fla.  889 246 

Garrett  v.  Lake  Roland  Elev.  R.  Co.,  79  Md.  277 250 

Garrett  v.  Wood,  55  App.  Div.  (N.  Y.),  281 41;  439 

Garvey  v.  Long  Island  R.  Co.,  9  App.  Div.   (N.  Y.),  254 75 

Gas  Co.  v.  Thomas,  41  Neb.  662 170 

Gaslell  v.  Bayley,  30  L.  T.  N.  S.  516 13S 

xlix 


Table  of  Cases. 

Sec. 

Fisher  v.  Thirkell,  21  Mich.  1 231,  470 

Fisher  v.   \\ "einhelzer,  91  Minn.  22 192 

Fisher  v.  Zumwalt,  128  Cal.  493 4,  14,  157,  168,  424 

Fisk  v.  Wilber,  7  Barb.  705 363,  418 

Fitzgerald  v.  Firbank,  66  L.  J.  Ch.  N.  S.  529 276 

Flaherty  v.  Moran,  81  Mich.  52 37,  43,  404 

Fleischner  v.  Citizens'  Real  Est.  &  Invest.  Co.,  25  Oreg.  119,  126. .  .  .382,  416 

462,  470 

Fleming  v.  Hislop,  11  App.  Cas.  686,  697 2 

Fletcher  v.  Auburn  &  S.  R.  Co.,  25  Wend.   (N.  Y. ) ,  463 242 

Fletcher  v.  Rylands,  1   Exch.  265 27,  382 

Flight  v.  Thomas,  10  Ad.  &  El.  590 55,     57 

Flint  v.  Russel,  Fed.  Cas.  No.  4,876,  5  Dill.  151 200,  205 

Flood  v.  Consumers'  Co.,  105  111.  App.  559 22,  40,  41,  415,  416,  417,  419 

Flynn  v.  Butler  (Miss.  1905),  75  N.  E.  730 384 

Flynn  v.  Taylor,  127  N.  Y.  596 223 

Flynn  v.  Taylor,  53  Hun    (N.  Y.),  167 220 

Fogarty  v.  Junction  City  Pressed  Brick  Co.,  50  Kan.  478 158,  485 

Fogg  v.  Nevada  C.  O.  R.  Co.,  20  Nev.  429 430,  432,  436 

Foot  v.  Burlington  Water  Co.,  94  Iowa,  89 76 

Foote,  ex  parte,  70  Ark.  12 5,  15 

Ford  v.  Warner  Co.,  1  Marv.   (Del.),  88 247 

Fort  Plain  Bridge  Co.  v.  Smith,  30  N.  Y.  44 370 

Fort  Worth  v.  Crawford,  74  Tex.  404 136,  157,  166,  169,   170,  355,  357 

Ft,  Worth  &  D.  C.  Ry.  v.  Beauchamp,  95  Tex.  496 258 

Ft.  Worth  &  D.  C.  R.  Co.  v.  Scott,  2  Wils.  Civ.  Cas.  Ch.  App.,  !   140 476 

Ft.  Worth  &  R.  G.  R.  Co.  v.  Glenn,  97  Tex.  586 444 

Foshay  v.  Glen  Haven,  25  Wis.  288 255 

Fossen  v.  Clark,  113  Iowa,  86 485 

Fossin  v.  Landry,  123  Ind.  136,  236 422,  432 

Foster  v.  Manchester,  89  Va.  92 216 

Foster  v.  Norton,  2  Ohio  Dec.  390 417,  484 

Fox  v.  Buffalo  Park,  21  N.  Y.  App.  Div.  321 464 

Fox  v.  Fostoria,  S  Ohio  C.  Dec.  39 319 

Fox  v.  Philadelphia,  208  Pa.  127 279 

Frammell  v.  Little,  16  Ind.  251 192 

Francis  v.  Johnson   (Iowa),  101  N.  W.  878 472 

Francis  v.  Schoelkopf,  52  N.  Y.  152,  155 14,  41,  116,  170,  428,  443 

486,  490,  493 

Francklyn  v.  People's  Heat  &  L.  Co.,  32  N.  S.  44 71,  485 

Frank  v.  Atlantic,  72  Ga.  428,  432 346 

Frank  v.  New  Orleans  &  C.  R.  Co.,  20  La.  Ann.  25 490 

xlviii 


Table  of  Cases. 

Sec. 

Frankfort  v.  Commonwealth,  25  Ky.  L.  Rep.  311 279,  358 

Franklin  Wharf  Co.  v.  Portland,  67  Me.  46 295,  431,  448 

Frazee,  Matter  of,  63  Mich.  396 337 

Frazer  v.  Chicago,  186  111.  480 356 

Frederick  v.  Cook,  4  Ga.  241 321 

Frendenstein  v.  Heine,  6  Mo.  App.  287 39 

Fresno  v.  Fresno  Canal  &  Irrigation  Co.,  98  Cal.  179 307,  348 

Friedlander  v.  Delaware  &  H.  Canal  Co.,  13  N.  Y.  Suppl.  323 258 

Friedman  v.  Columbia  Machine  Works,  99  App.  Div.   (N.  Y.),  504.  . .  135,  143 

Frink  v.  Lawrence,  20  Conn.  117 275,  422,  430,  433 

Fritsche  v.  Clemow,  109  111.  App.  355 192 

Frizzle  v.  Patrick,  59  N.  C.  354 417,  430 

Froelicher  v.  Oswald  Ironworks,  111  La.  705,  708 174,  183 

Frost  v.  Berkeley  Phosphate  Co.,  42  S.  C.  402 89,  164,  167,  382 

Frost  v.  Portland,   11  Me.  271 264 

Frostburg  v.  Duffy,  70  Md.  47 281,  329 

Fuel  Co.  v.  Andrews,  50  Ohio,  695 385 

Fulham  Vestry  v.  London  County  Council   ( 1897),  2  Q.  B.  76 372 

Fuller  v.  Chicago  R.  T.  &  P.  Ry.  Co.,  61  Iowa,  125 410 

Fuselier  v.  Spalding,  2  La.  Ann.  773 Ill 

Gaines  v.  Waters,  64  Ark.  609 331 

Gale  v.  Abbott,  6  L.  T.  R.  N.  S.  852 36 

Gale  v.  Abbott,  8  Jur.  JSI.  S.  987 58 

Gale  v.  Rochester,  7 1  N.  Y.  Supp.  986 286 

Gallagher  v.  Dodge,  48   Conn.  387 43,  105 

Gallagher  v.  Flury,  99  Md.  181 204,  205,  210,  419 

Gardner  v.  Heartt,  2  Barb.   ( N.  Y.) ,  265 28,  32 

Gardner  v.  Newburgh,  2  Johns.  Ch.  162 329,  417 

Gardner  v.  Stroever,  89  Cal.  26 4 

Gared  v.  Martyn,  19  C.  B.  N.  S.  732 32S 

Garibaldi  v.  O'Connor,  210  111.  284 212,  223 

Garitee  v.  Baltimore,  53  Md.  422 436 

Garland  v.  Aurin,  103  Tenn.  555 443,  444  445 

Garland  v.  Town,  55  N.  H.  55 237  382 

Garlich  v.  Dorsey,  48  Ala.  222 192 

Garnett  v.  Jacksonville  St.  A.  &  H.  R.  Ry.  Co.,  20  Fla.  S89 246 

Garrett  v.  Lake  Roland  Elev.  R.  Co.,  79  Md.  277 250 

Garrett  v.  Wood,  55  App.  Div.  (N.  Y.),  281 41,  4S0 

Garvey  v.  Long  Island  R.  Co.,  9  App.  Div.   ( N.  Y. ) ,  254 75 

Gas  Co.  v.  Thomas,  41  Neb.  662 170 

Gaslell  v.  Bayley,  30  L.  T.  N.  S.  516 13S 

xlix 


Table  of  Cases. 

Sec. 

I  lass  v.  Greeneville,  4  Sneed    (Tenn.),  61 330 

Gates  v.  Blincoe,  2  Dana   (Ky.),  153 365,  369,  370,  374,  376,  415 

Gates  v.  Kansas  City  B.  &  T.  R.  Co.,  Ill  Mo.  28 79 

gan  v.  Atlantic  Ref.  Co.,  186  Pa.  604 157,  168,  387 

( lawn  v.  Wilson,  9  Ohio  S.  &  C.  P.  Dec.  683 272 

Gay  \ .  .Mutual  Union  Tel.  Co.,  288  Mo.  App.  485 258 

Gay  v.  State,  90  Tenn.  645 414 

( }een  v.  St.  Mary,  2  Q.  B.  1 308 

Gehlen  v.  Knorr,  101  Iowa,  750 267 

Geiger  v.  Filor,  8  Fla.  235 275 

Gempp  v.  Bassham,  60  111.  App.  84 41 

George  v.  Cypress  Hills  Cemetery,  32  App.  Div.  281 382 

George  v.  Peckham   (Neb.  1905),  103  N.  W.  664,  666 21S,  221,  425 

George  v.  Wabash  R.  Co.,  40  Mo.  App.  433 11,  306,  457 

Georgetown  v.  Alexandria  Canal  Co.,  12  Pet.   (U.  S.),  91 272,  273,  414 

422,  430,  437 

Georgia  Chemical,  etc.,  Co.  v.  Colquitt,  72  Ga.  172 26 

Georgia  R.  &  Bkg.  Co.  v.  Maddox,  116  Ga.  64 76,  411 

Gerber  v.  Grabel    (1854),  16  111.  217 36 

<  ierdes  v.  Christopher  &  Simpson  A.  I.  &  F.  Co.,  124  Mo.  347 223 

Germaine  v.  The  London  Exhibitions,  Limited,  75  Law  T.  R.  101 115 

Gerow  v.  Liberty,  106  App.  Div.    (X.  Y.),  357,  94  N.  Y.  Supp.  949 170 

490,  494 

Gerrish  v.  Proprietors  of  Union  Wharf,  26  Me.   (13  Shep.)   384 27,  32 

Gerst  v.  St.  Louis,  185  Mo.   191 279 

Gibbons  v.  Ogden,  9  Wheat.   1 274 

Gifford.     See  Gilford. 

Gilford  v.  Hulett,  62  Vt.  342,  346 2,  204 

Gilbert  v.  Greeley  S.  L.  &  P.  R.  Co.,  13  Colo.  501 221 

Gilbert  v.  Mickle,  4  Sandf.  Ch.  357 415 

Gilbert  v.  Showerman,  23  Mich.  448 96,  135 

Gilbough  v.  West  Side  Amusement  Co.,  64  N.  J.  Eq.  27 390 

Giles  v.  Walker,  L.  R.  24  Q.  B.  D.  656 44 

Gilford   (Gifford)  v.  Babies'  Hospital,  1   X.  Y.  Supp.  448 397 

Cilmore  v.  Philadelphia,  3  Wall.    (U.  S.)    713 326 

Gilson  v.  Donk,  7  Mo.  App.  37 41 

Ginnochio  v.  State,  30  Tex.  App.  584 339 

Gitt  v.  Hanover,  4  Pa.  Dist.  R.  606 253 

Givens  v.  Van  Studdiford,  86  Mo.  149 40,  41,  79,  487,  488 

•  iladstone  v.  Brunkhoist,  70  X.  J.  L.  130 192 

Glaessner  v.  Anheuser  Busch  Brew.  Co.,  100  Mo.  508.  ...  .80,  246,  261,  430 

433,  436 
1 


Table  of  Cases. 

Sec. 

Gleason  v.  Cary,  4  Conn.  418 374 

Glick  v.  Baltimore  &  O.  R.  Co.,  19  D.  C.  412 249 

Glossop  v.  Heston  &  Isleworth  Local  Board,  49  L.  J.  Ch.  89 291 

Glucose  Refining  Co.  v.  Chicago,  138  Fed.  209 150 

Goddard  v.  Jacksonville,  15  111.  588 339 

Goggans  v.  Myrick,  131  Ala.  286 222 

Golden  v.  New  York  Health  Dept.,  21  App.  Div.   (N.  Y.)  420 346 

Goldsmid  v.  Commissioners,  L.  R.  1  Eq.  161 56 

Goldsmid  v.  Tunbridge  Wells  Imp.  Commissioners,  35  L.  J.  Ch.  382.  ...  22 

24,  40,  294,  304,  309,  410 

Good  v.  Altoona,   162  Pa.  493 286,  329 

Goodall  v.  Crofton,  33  Ohio  St.  271 88,  188 

Goodman  v.  Gay,  15  Pa.  St.   188 194 

Goodwill  v.  Bossier  Parish,  38  La.  Ann.  752 272 

Goodwin  v.  Alexander,  105  La.  658 36 

Gordon  v.  Baxter,  74  N.  C.  470 422 

Gordon  v.  Cheltenham  &  Great  Western  Ry.  Co.,  5  Beav.  233 58 

Gordon  v.  Omaha  ( Neb. ) ,  99  N.  W.  242 279 

Gordon  v.  Pultzer,  56  Mo.  App.  599 231 

Gorham  v.  Gross,  125  Mass.  232 385 

Gorton  v.  Smart,  1  Sim.  &  S.  66 110 

Gould  v.  Eaton,   117    Cal.   539 312 

Grace  v.   Walker,  95   Tex.  39 486 

Grady  v.  Wolsner,  46  Ala.  381 11,  27,  394,  447,  459 

Grafton  v.  Moir,  1 30  N.  Y.  465 36 

Grandona  v.  Lovdal,  70  Cal.  161 4,  37,  141,  375 

Grand  Rapids  v.  Powers,  89  Mich.  94 i>4 

Grand  Rapids  v.  Weiden,  97  Mich.  82 116 

Grand  Rapids  &  I.  R.  Co.  v.  Heisel,  38  Mich.  62 242 

Grand  Rapids  E.  L.  &  P.  Co.  v.  Grand  Rapids  E.  E.  L.  &  F.  G.  Co.,  33 

Fed.    659 80 

Grant  v.  Defenbaugli,  91  111.  App.  618 218 

Grant  v.  Schmidt,  22  Minn.   1 416,  443 

Grant  v.   Stillwater,  35  Minn.  242 229 

Gravel  v.  Gervais,  M.  L.  R.,  7  S.  C.  326 Ill 

Graver  v.  Dodson  Coal  Co.,  20  Pa.  Co.  Ct.  529 474 

Graves  v.  Shattuck,  35  N.  H.  257 374,  375 

Gray  v.  Baynard,  5  Del.  Ch.  499 212,  233,  260,  415 

Gray  v.  Boston  Gas  Light  Co.,  114  Mass.  149 463,  476 

Gray  v.  Coombs,  7  J.  J.  Marsh,  478 389 

Gray  v.  Griffin,  111  Ga.  361 279 

Gray  v.  Paterson,  45  Atl.  995 80 

li 


Table  of  Cases. 

Sec. 

Gray  v.  Paterson,  60  N.  J.  Eq.  385 80 

Greasten  v.  Chicago,  40  111.  App.  607 231 

Great  Falls  Co.  v.  Worster,  15  N.  H.  412 369,  375,  376,  379 

Green  v.  Asher,  10  Ky.  L.  Rep.  1006 436 

Green  v.  Harrison  County,  61  Iowa,  311 279 

Green  v.  Lake,  54  Misc.  540 126,  187,  318,  332,  415,  429,  341,  486 

Green  v.  Muskingum  County  Comrs.,  23  Ohio  Civ.  Ct.  R.  43 279 

Green  v.  Soule,  1  45  Cal.  96 472 

Green  Nav.  Co.  v.  Chesapeake,  etc.,  Co.,  88  Ky.  1 273 

Greenville  v.  Britton,  19  Tex.  Civ.  App.  79 358 

Greenwault's  Case,  4  City  H.  Rec.  (N.  Y.)   174 402 

Greer  v.  Van  Meter,  54  N.  J.  Eq.  270 36 

Grey  v.  Ohio  &  P.  R.  Co.,  1  Grant  Cas.  412 415,  417 

Grey  (Simmons)  v.  Paterson,  58  X.  J.  Eq.  1 289,  290,  382,  448 

Gribben  v.  Hansen,  69  Iowa,  255 362 

Gridley  v.  Bloomington,  68  111.  47 52 

Griffin  v.  Gloversville,  67  App.  Div.   (N.  Y.)  403 332,  341 

Griffith  v.  Holmes,  23  Wash.  347 272,  370 

Griffith  v.  MoCollum,  46  Barb.    (N.  Y.)   561 370 

Cirigsby  v.  Clear  Lake  Water  Co.,  40  Cal.  396 323,  324,  429,  456 

Grinnell  v.  Eames,  32  Law  T.  R.   (N.  S. )   835 231 

Groff  v.  Ankenbrandt,  19  111.  App.  148 456 

Grogan  v.  Broadway  Foundry  Co.,  87  Mo.  321 357,  457,  466 

Groner  v.  Foster,  94  Va.  650 275 

Grossman  v.  Oakland,  30  Oreg.  478 262 

Glucose  Refining  Co.  v.  City  of  Chicago,  138  Fed.  209,  217 150,  152 

Guardians  of  Hendon  Union  v.  Bowles,  20  L.  T.  N.  S.  609 474 

Guest  v.  Reynolds,  68  111.  471 403 

Guilford  v.  Minneapolis  &  St.  P.  R.  R.  Co.   (Minn.  1905),  102  N.  W.  365.  218 

Guilfoos  v.  New  York  C.  &  H.  R.  R.  R.  Co.,  69  Hun   (N.  Y.),  593 239 

Gulf  &  C,  &  S.  F.  R.  Co.  v.  Reed  (Tex.  Civ.  App.  1893),  22  S.  W.  283.  .  .  45 

<  iul lick  v.  Tremlett,  20  W.  R.  358 135 

Gundiich  v.  liamm   (Mich.),  64  N.  W.  50 425 

Gunning  System  v.  City  of  Buffalo,  62  App.  Div.   (N.  Y.)   497 347,  348 

Gvnter  v.  Geary,  1  Cal.  462 5,  8,  14,  370 

Gustafaon  v.  Hamm,  56  Minn.  334 247 

Guttery  v.  Glenn,  201  111.  275 218,  2*21 

Gwin  v.  Melmoth,  1  Freem.  Ch.  (Miss.)   505 36,  39,  415,  417,  419 

Haag  v.  Board  of  Com'rs.  of  V.  Co.,  60  Ind.  511 2,  4,  356 

Haag  v.  Mt.  Vernon,  41  App.  Div.  366 307 

Hacke,  Appeal  of,   101  Pa.  245 4-17 

lii 


Table  of  Cases. 

Sec. 

Hackney  v.  State,  8  Ind.  494 4,  5 

Hafer  v.  Guynian,  7  Pa.  Dist.  R.  21 96 

Hagerty  v.  Lee,  54  N.  J.  L.  580 36 

Hagerty  v.  MeGovern,  187  Mass.  479 435 

Haggart  v.  Stehlin,  137  Ind.  43 13,  40,  74,  399 

Haggerty  v.  Thompson,  45  Hun,  398 456 

Hahn  &  Harris  v.  Thornbury,  7  Bush.  403 321,  322,  415 

Haines  v.  Hall,  17  Oreg.  165 272 

Hall  v.  Kitson,  3  Pin.   (Wis.)   296 429 

Hall  v.  Leichfield,  Brewen  Co.,  49  L.  J.  Ch.  655 36 

Hall  v.  Staples,  166  Mass.  399 331 

Hallands  Assignee  v.  Cincinnati  Dessicating  Co.,  97  Ivy.  454 475 

Haller   v.   Pine,    8   Blackf.    (Ind.),    175 486 

Hallock  v.  Scheyer,  33  Hun   (N.  Y.) ,  111 227 

Hallock  v.   Suitor,   37   Oreg.   9 272 

llalsey  v.  Rapid  St.  R.  Co.,  47  N.  J.  Eq.  380 40,  430 

Hamburg  American  Steamship  Co.  v.  Grube,  196  U.  S.  407 272 

Hamden  v.   New  Haven  &  N.   Co.,  27   Conn.   158 246 

Hamilton  v.  Columbus,  52  Ga.  435 422,  436,  448 

Hamilton  v.  Hudson  River  &  H.  R.  Co.,  9  Paige   (N.  Y.),  171 242 

Hamilton  v.  New  York  &  Harlem  R.  R.  Co.,  9  Paige  Ch.   (N.  Y.)    170.  .  78 

Hamilton  v.  Vicksburg,  Shreveport  &  Pac.  Rd.,   119  U.  S.  281 274,  326 

Hamilton  v.  Whitridge,   11  Md.   128 436 

Hampden  v.  New  Haven  &  Northampton  Co.,  27  Conn.  158 '    75 

Hanc  v.  Pipe  Line  Co.,  Ltd.,  153  Pa.  St.  366 18 

Hamiibal  v.  Richards,  82  Mo.  330 348 

Hanse  v.  Cowing,  1  Lans.    (N.  Y. )   288,  293 454 

Hard  v.  Boise  City  Irrig.  &  Canal  Co.   (Idaho  1904),  65  L.  R.  A.  407 265 

Harden   v.    Sinclaire,    115    Cal.    460 4,  475 

Hardman  v.  N.  E.  Ry.,  47  L.  J.  P.  368 317 

Hargreaves  v.  Kimberly,  26  W.  Va.  787 495 

Hargro  v.  Hodgdon,  89   Cal.   623 g 219,  222,  422,  432 

Harkin   v.   Crumbie,    20   Misc.   568 466 

Harlan  &  Hollingsworth  Co.  v.  Paschall,  5  Del.  Ch.  435.  .05,  66,  273,  275,  415 

Harley  v.  Merrill  Brick  Co.,  83  Iowa,  73 142 

Harmson  v.  Lewiston,  46  111.  App.  164 126 

Harmon  v.  Carter   (Tenn.  Ch. ) ,  59  S.  W.  756 323 

Harmon  v.  Chicago,   110  111.  400 150,  151,  153 

Harmon  v.  Lewiston,  153  111.  313 150 

Harmon  v.  Louisville  N.  O.  &  T.  R.  Co.,  87  Tenn.  614 242,  400 

Harndon  v.  Stultz,  124  Iowa,  734 411 

Harniss  v.  Bulfitt   (Cal.  1905),  81  Pac.  1022 218,  239,  424,  429 

liii 


Table  of  Cases. 

Sec. 

Harper   v.   Milwaukee,   30   Wis.   365 448 

Harper  v.  Standard  Oil  Co.,  78  Mo.  App.  338 20,  388 

Harrelom  V.  Kansas  City  &  Atlantic  R.  Co.,  151  Mo.  482 24,  417 

Harrington  v.  Board  of  Alderman,  20  R.  T.  233 82,  83 

Harris  v.  Boardman,  68  N.  Y.  App.  Div.  436 470 

Harris  v.  Thompson,  9  Barb.  350 44 

II  urison  v.  Brooks,  20  Ga.  537 ^ 419,  484 

Harrison  v.  Good,  L.  R.   11  Eq.  338 40 

Harrison  v.  Lewiston,  153  111.  313 334 

Harrison  v.  People,  101  111.  App.  224 109 

Harrison  v.  Southwark  &  Vauxhall  W.  Co.  ( 1891),  2  Ch.  409 71 

Harrison  v.  St.  Mark's  Church,  12  Phila.    (Pa.)   259 179 

Harrison  County  Ct.  v  Wall,  11  Ky.  Law  R.  223 258 

Harrold  v.  Watney    (Ga.),    (1898)    2  Q.  B.  320 453 

Harrower  v.  Ritson,  37  Barb.    (N.  Y.)   301 370,  376 

Hart  v.  Albany,  9  Wend.   (N.  Y.)   571 345 

Hart  v.  Union  City,  57  N.  J.  L.  90 353 

Hartley  v.  Herretta,  35   W.  Va.   222 399 

Harvey   v.   Buchanan,    121    Ga.   384 192 

Harvey  v.  Dewoody,    18  Ark.   252 368,  374 

Harvey  v.   Ice   Co.,    104   Tenn.   583 200,  201 

Haskell  v.  Denver  Tramway  Co.,  23  Colo.   60 78 

Haskell  v.  New  Bedford,  108  Mass.  208 431 

Hathaway   v.    Osborne,    25    R.    I.    249 279 

Hauck  v.  Tide  Water  Pipe  Line  Co.,  175  Pa.  366 388 

Haugh's  Appeal,  102  Pa.  42 405,  443,  487 

Haverstick  v.  Sipe,  23  Pa.  St.  368 36 

Hawes,  In  the  Matter  of,  68  Cal.  412 4 

Hawkins  v.  Sanders,  45  Mich.  491 79 

Hay  v.  Cohoes  Co.,  2   N.  Y.   159 .  .  .  108,  385 

Hayden  v.   Albee,  20  Minn.    159 329 

Hayden  v.  Dutcher,  31  N.  J.  Eq.  217 36 

Elayden  v.  Tucker,  37  Mo.  214 6,  9,  13,  14,  19,  27,  196 

Hayes  v.  Chicago  St.  P.  M.  &  O.  R.  Co.,  46  Minn.  349 222 

Hayes  v.  St.  Mary's,  55  Ohio  St.  197 385 

Hazard   Powder  Co.   v.   Volger,   58   Fed.    152 383, 384,  385 

Health  Department  v.  Dasori,  21  App.  Div.   (N.  Y.)   348,  355 348,  350 

Heather   v.   Hearn,  5   N   Y.    Supp.   85 487 

Heather  v.  Pardou,  37  L.  T.  N.  S.  393 57,  174 

Heeg  v.  Licht,  80  N.  Y.   579 9,  11,  99,  383,  384 

Hellams   v.   Switzer,  24   S.  C.   39 365 

Hellen  v.  Nee,  25  N.  C.  495 197 

liv 


Table  of  Cases. 

Sec. 

Helrich  v.  Catonsville  Water  Co.,  74  Md.  269 311 

Helwig  v.  Jordan,  53  Ind.  21 Ill,  447,  459,  462 

Hendrick  v.   Cook,  4  Ga.   241 268 

Hennessy  v.  Carmony,  50  N.  J.   Eq.  616 188,  189 

Hennessy  v.   St.  Paul,   37   Fed.   565 349 

Henry  v.  Newburyport,  149  Mass.  582 430 

Henry  v.  Ohio  River  R.  Co.,  40  W.  Va.   234 , 485 

Henry  v.  Perry  Twp-Trustees,  48   Ohio  St.  671 393 

Henson  v.  Beckwith,  20  R.  I.   165 11 

Hentz  v.  Long  Island  R.  Co.,  13  Barb.   (N.  Y.)  646. ., 242 

Hentz  v.  Mt.  Vernon,  78  App.  Div.    (N.  Y.)   515 489 

Herbert  v.   Rainey,   54  Fed.   248,  251 85,  112 

Herbert  v.  Rainey,  162  Pa.  St.  525 41,  50-2 

Herbert  v.  St.  Paul  City  Ry.  Co.,  85  Minn.  341 209 

Hermon  v.   Chicago,    110  111.  400 332 

Herr  v.  Central  Ky.  Lun.  Asy.,  22  Ky.  L.  Rep.  1722 450 

Herrick  v.  Cleveland,  7  Ohio  C.  C.  470 228,  443 

Hess  v.  Lancaster,  4  Pa.  Dist.  R.   737 233 

Heyward  v.  Farmers  Min.  Co.,  42  S.  C.  148 272 

Hexamer  v.  Webb,  101  N.  Y.  377 258 

Hibbard   v.    Chicago,    173    111.    91 258 

Hickerson  v.   United   States,   2   Hayw.  &  H.   228 414 

Hickey  v.  Michigan  C.  R.  Co.,  96  Mich.  498 458 

Hicks    v.    Smith,    109    Wis.    532 66 

Hiesskell   v.   Gross,    3   Brews.    (Pa.)    430 485 

Higbee  v.  Camden  &  Amboy  R.  &  T.  Co.,  20  N.  J.  Eq.  435 484 

Higgins  v.  City  of  Princeton,  8  N.  J.  Eq.  309 3G5 

High    Wycombe    v.    Conservators    of    River    Thames    (Q.    B.),    78    Law 

T.  R  463 486 

Hildrup  v.  Windfall  City,  29  Ind.  App.  592 252 

Hill  v.  Dunn,  69  Iowa,  401 399 

Hill  v.  McBurney  Oil  &  Fertilizer  Co.,  112  Ga.  788 4,  71,  180,  449 

Hill  v.  New  York,   139  N.  Y.  495 72,  85,  335,  429 

Hill  v.  New  York,  15  N.  Y.  Supp.  393 430 

Hill  v.  Pierson,  45  Neb.   503 395,  425 

Hill  v.  Schneider,  13  App.  Div.   (N.  Y)   299 89 

Hinchman  v.  Patcrson  Horse  R.  Co.,  17  N.  J.  Eq.  75 67,  242.  430 

Hindson  v.  Densmore,  68  Ind.  391 86 

Hine  v.  New  York  Elev.  R.  Co.,  128  N.  Y.  571 493 

Hoadley  v.  Seward  &  Son  Co.,  71  Conn.  640 1, 22,  27,  34,  86 

Hockaday  v.   Wortham,  22  Tex.   Civ.  App.  419 40, 204,  211 

Hodges  v.  Williams,  95  N.  C.  33 272 

Iv 


Table  01  (  'ases. 

Skc. 

Hodgkinson  v.  Ennor,  4  B.  &  S.  229 328 

Hodgkinson  v.  Long  Island  R.  Co.,  4  Edw.  Ch.   <  X.  V.i  411 242,  417 

Hoe;  v.  Gilroy,   L29  X.   V.   L32 78,  79 

Elec.  Ilium.  Co..  87  Aj.p.  Div.   (N.  Y.)  371. .156,  445,  490 

..  Flint  &  P.  M.  R.  I  o.,   I  I  i  Mich.  316 491 

Hoffman  v.   Muscatine,   L13   [owa,  332 315 

m,  v.  Central    Pacific   R.  Co.,  71    Cal.  83 218 

Eolbrook  v.  Griffis,   127  [owa,  505;    103  X.  W.  470 24,41,479,  491 

Hole  v.  Barlow,  I  C.  B.  X.  8.  334 Ill 

Holke  \.  Herman,  87  Mo.  App.  L25 305,  419 

Hollenbeck  v.  Marion,  118  [owa,  69 41,297,309,  32!) 

Holmes   v.  Corthell,  80  Me.   31 422 

Holmes   >.  Jones,  80  Ga.  659 i 408 

Holroyd  v.  Sheridan,  ■".::  App.  Div.    (N.  Y.)    14 233 

Holsey  v.  Eapid  Transit   Streel   R.  Co.,  47  N.  J.  Eq.  380 223 

ll.4-ni.in  \.   Boiling  Spring  Bleaching  Co.,  1  N.  J.  Eq.  335 24,303,  415 

Hume  v.  Orleans,   12  La.  Ann.  481 358 

Honesdale    v.    Weaver,    2    l'a.    Dist.    I:.    344 419 

Honsel  v.  Conant,  L2  III.  App.  259 37,  403 

Hoops    v.    [pava,    55    III.    App.    :n 196 

Hopkins  v.  Baltimore  &  I'.  R.  Co.,  ii  Mackey  (D.  C),  311 444 

Hopkins  v.  Southwick  Local  Board  of  Health  L.  R.,  24  Q.  B.  D.  712 331 

Hopkins   v.   Western    I*;'-.    R.   Co.,   50  Cal.   190.. 4,40,  259 

Horbach    v.   Omaha,  54  Neb.    83 345,  381 

Horstman  v.  Young,   13  Phila.   L9 422,  435 

Horton    v.    Nashville,    4    Lea.    37 285 

Houck  v.  Wachter,  34  Md.  205 218,221,  239 

Hough   v.  Dotlestown,  4   Brewst.    (Pa.)    333 4i5 

Houghton  v.   Bankhard,   3   Law  T.   N.    S.   266 40 

Houston    v.    State,   98   Wis.   481 380 

Houston  &  Great  Northern  R.  Co.  v.  Parker,  50  Tex.  333 486 

Houston    E.   &   W.   T.    It.    Co.   v.   Reasonover,   30   Tex.    Civ.   App.    274, 

81   S.  W.  329 158,170,  501 

Eon  t(  n   E.  &  W.  T.  R.  Co.  v.  Charwaine,  30  Tex.  Civ.  App.  633 445 

Howard   \.   Brooklyn,  30  App.   Div.    (N.   V.)    217 354 

ard  \.  Hartford  Street  Ry.  Co.,  70  Conn.  174 218,  242 

Howard  v.  !>■<■,  :;  Sand.  (X.  Y.)  281,  283 2,87,  OH 

Howard  County  v.  Chicago  &  A.  R.  Co.,  130  Mo.  652 485 

Howe-    v.    McNamara,    106  Mass.   281 192 

Howri#an   v.   Norwich,  77   Conn.    358 279 

Hoy    v.    Sterret,    2    Watts.     (Pa.)     327 36 

Hubbard  v.  Deming,  21  Conn.  356 222,  239 

lvi 


Table  of  Cases. 

Sec. 

Hubbard  v.  Medford,  20  Or.  315 343 

Hubbard  v.  Russell,  24  Barb.    (N.  Y.)    404 457 

Hubbard  v.  Toun,  33   Vt.   295 30 

liubbell  v.  Viroqua,  07  Wis.  343 125,  354 

Huckenstines   Appeal,   70   Pa.    102 21,90,111,133,  140 

Hudsou   v.   Caryl,   44  N.    V.   ^>oo 392 

Hudson  v.  Thome,  7  Paige's  Cb.    (N.  Yf)    201 342 

Hudson  R.  11.  Co.  v.  Loeb,  7  Rob.   (30  N.  Y.  Super.)   418 445 

Huesing  v.  Rock  Island,  128  111.  405,  475 127 

Hughes  v.  Fond  du  Lae,  73  Wis.  3S0. ., 353 

Hughes  v.  General  Elec.  L.  &  P.  Co.,  107  Ky.  485 480,  494 

Hughes  v.  General  Electric  Light  &  Power  Co.,  21  Ky  L.  R.  1202 443 

Hughes  v.   lieiser,   1   Bin.    ( Pa. )    403 39 

Hughes  v.  Providence  ^  Worcester  it.  It.  Co.,  2  R.  I.  493,  505 ,.  .  72 

Hughesville  Water  Co.  v.  Person,  182  Pa,    1^0 312 

Hulett  v.  Missouri  K.  &  T.  R.  Co.,  80  Mo.  App.  87 , 457 

Humphrey   v.    lrvin,    3    Pa.    Cas.    272 415 

Humphrey  v.  lrvin  (Pa.),  18  Wkly.  M.  C.  449 39 

Humphreys  v.  Cousins,  40  L.  J.  C.  P.  432 306 

Humphreys  v.  Eastlack,  03   is".  J.  Eq.    130 430 

Hundhausen    v.    Bond,    30    Wis.    29 229 

Hundley  v.  Harrison,   123  Ala.   292 5,  8,  11,  12,  158,  417 

Hunt  v.  Coggin,  00  N.  11.  140 , 43 

Hunt  v.  Iowa  Cent.  Ry.,  80  Iowa  15 297 

Hunter  v.   Fanen,    127   Mass.   48 108 

Hunter  v.  Taylor  C  oal  Co.,  10  Ky.  L.  Rep.  190. . . 277,  489 

Huntington  v.  Stemeh  (Ind.  App.),  77  N.  E.  407 489 

Huntington   &   K.   Land   D.   Co.   v.    Phoenix    Powder   Mfg.    Co.,    40    W. 

Va.    711     384 

Hurburt    v.    McKone,    55    Conn.    31 , 22,  33,  34,  35,  95,  141,  103 

Huron  v.  Bank  of  Volga,  8  S.  D.  449 439 

Huse    v.    Glover,    119   U.    S.    543 326 

Hussull  v.  Brooklyn  City  R.  Co.,  114  N.  Y.  433 70 

Hutchins  v.  Smith,  03  Barb.    (N.  Y.)   251,  258 145 

Hutchinson   v.   Delano,   40   Kan.   345 419 

Hutson  v.   King,   95   Ca.   271 382 

Hutton  v.   Camden,   39   N.   J.   L.    122 84,  331,  359,  3G3,  308 

Hyatt  v.  Myers,  71  N.  C.  271 135,  143 

Hyde  v.  County  of  Middlesex,  2  Gray  (Mass.) ,  234,  2G7 233,  237 

Hyde  Park  Thompson-Houston  Elec.  Light  Co.  v.  Porter,  167  111.  27 475 

Hyde  Park  Thompson-Houston  Light  Co.  v.  Porter,  64  111.  App.  152 143 

lvii 


Table  of  Cases. 

Sec. 

Idaho  Springs  v.   Filteau,   10  Colo.   105 277 

Idaho  Springs  v.   Woodward,    10   Colo.    104 277 

Idlewild,  The,  64  Fed.  003 5>    275 

UifT  v.  School  Directors,  45  111.  App.  419 158,  314,     417 

Illinois  (Hunt),  v.  Illinois  C.  R.  Co.,  Fed.  955 275 

Illinois  C.  R.  Co.  v.  Commonwealth,  20  Ky.  Law  R.  115 248 

Illinois  C.  R.  Co.  v.  Grabill,  50  111.  241 71 

Illinois  C.  R.  Co.  v.  Illinois,  146  U.  S.  387,  435. . . 63,  65,  272,     275 

Illinois  C.  R.  Co.  v.  People,  59  111.  App.  256 248 

Illinois  Steel  Co.  v.  Bilot,  109  Wis.  418 272 

Illinois  St.  L.  &  R.  &  C.  Co.  v.  St.  Louis,  2  Dill.  70 429 

Imperial  Gas  Light  &  Coke  Co.  v.  Braodbent,  7  H.  L.  Cas.  600 26 

Inchbald  v.  Barringtcn,  L.  R.  4,   Ch.  388 24 

Inchbald  v.  Robinson,  20  L.  T.  X.  S.  259 176 

Inchbald   v.   Robinson,   L.   R.   4   Ch.   38 24 

Independence  v.  Purdy,  46  Iowa,  202 305,     348 

Indiana  B.  &  W.  R.  Co.  v.  Eberle,  110  Ind.  542 491 

Indianapolis  v.  Blythe,  2  Ind.  75 361 

Indianapolis  v.  Miller,  27  Ind.  394 376 

Indianapolis  Water  Co.  v.  American  Strawboard  Co.,  57  Fed.  1000 307 

422, 429, 481, 477,     485 
Indiana  Springs  Co.  v.  Brown   (Ind.  S.  C.  1905),  74  N.  E.  615,  616.  ..  .     212 

Ingersoll   v.   Rousseau,    35    Wash.    72 365,415,422,436,460,486,     487 

Ingraham  v.   Dunnell,  5  Mete.   118 , 417,     443 

Ingwersen  v.   Barry,    118   Cal.   342 36 

Inhabitants  of  Charlotte  v.  Pembroke  Iron  Works,  82  Me.  391 , 439 

Inhabitants  of  New  Salem  v.  Eagle  Mill  Co.,  138  Mass.  8 439 

Inhabitants  of  Winthrop  v.  New  England  Chocolate  Co.,  180  Mass.  464.  .        85 

Inman  v.  Tripp,  Treas.,  11  R.  I.  520 329,     498 

Innis  v.  Cedar  Rapids  I.  F.  &  N.  W.  R.  Co.,  76  Iowa,  165.  .  .  ...  .429,433,     434 

in  re.     See  name. 

International  &  G.  N.  R.  Co.  v.  Davis  (Tex.  Civ.  App.),  29  S.  W.  483.57,     415 

Iowa,  State  of,  v.  Beardsley,  108  Iowa,  396 11 

Irvine  v.  Atlantic  Ave.  R.  Co.,  10  App  Div.  560 422,     432 

Irvine  v.   Wood,  51   N.   Y.   224 231, 232,     457 

Irwin  v.  Dixon,  9  How.  (U.  S.)   10,  27... 218,422,430,     432 

Irwin  v.  Fowler,  5  Rob.    (X.  Y.)    482 .• 230 

Irwin  v.  Great  Southern  Telephone  Co.,  37  La.  Ann.  63 67,216,     258 

Irwin  v.  Sprigg,  6  Gill   (Md.)   200 46,     230 

Isham  v.   Broderick,   89   Minn.   397 52,  316,     463 

Ison  v.  Manley,  76  Ga.  804 422,     430 

lviii 


Table  of  Cases. 

Sec. 

Jackson  v.  Castle,  80  Me.  119 255 

Jackson  v.  Chicago  &  N.  W.  R.  R.  Co.,  31  Iowa,  176 75 

Jackson  v.  Chicago  S.  F.  &  C.  R.  Co.,  46  Fed.  656 494 

Jackson  v.  Rochester,   7   N.  Y.  St.  R.  853 280 

Jacksonville  v.  Doan,   145  111.  23 169,  329,  422,  431 

Jacksonville  v.  Hollan,   19   111.  271 339 

Jacksonville  v.  Lambert,  62  111.  519 285,  329,  448 

Jacob  v.  Day,   111   Cal.   571 485 

Jacobs,  In  re,  98  N.  Y.  98 81 

Jacobs  v.   Allard,   42    Vt.    303 318 

Jahn's  Admr.  v.  McKnight  &  Co.,  25  Ky.  Law  R.   1758 472 

James  v.  Commonwealth,  12  S.  R.   (Pa.)   220 , 402 

James  v.   Harrodsburg.   85   Ky.    191 358 

James  v.  McMinimy,   14  Ky.   L.  Rep.   486 457 

James   v.   Sammis,    132   N.   Y.   239 204 

Janesville   v.   Carpenter,   77    Wis.   288 82 

Jarvis  v.  Pinckney,  3  Hill   (S.  C.)   447 5,  6 

Jarvis  v.  Santa  Clara  Val.  R.  Co.,  52  Cal.  438 420 

Jarvis  v.  St.  Louis  I.  M.  &  S.  R.  Co.,  26  Mo.  App.  253 :•  .  374 

Jeaume  v.  New  York  L.  &  W.  R.  Co.,  35  N.  Y.  St.  R.  674 250 

Jenkins  v.  Pennsylvania  R.  Co.,  67  N.  J.  L.  331 259 

Jenks   v.   Williams,    115   Mass.   217 233,  236 

Jersey  City  Water  Commrs.  v.  City  of  Hudson,  13  N.  J.  Eq.  420 415 

Jesse  French  Piano  &  Organ  Co.  v.  Forbes,  129  Ala.  471 30 

Jochem  v.   Robinson,  72  Wis.   199 226 

Jochem  v.   Robinson,   66   Wis.   638 212,  223 

Johnson  v.  Baltimore  &  Potomac  R.  R.  Co.,  4  App.  D.  C.  491 246,  249 

Johnson   v.   Maxwell,   2   Wash.    482 369 

Johnson  v.  Porter,  42  Conn.  234 , 40,  489 

Johnson  v.  United  States,  2  Ct.  CI.  391,  401 59 

Johnson  Chair  Co.  v.  Agresto,  73  III.  App.  384 229 

Johnston  v.  Phoenix  Bridge  Co.,  169  N.  Y.  581 472 

Joint  Committee  on  River  Ribble,   1  Q.   B.   27 303 

Jones   v.    Chanute,    63   Kan.    243 413,425,430,431,430,  43S 

Jones  v.  Erie  &  W.  V.  R.  Co.,  151   Pa.  St.  30 2.10 

Jones   v.   Jenkins,    34   Md.    1 36 

Jones  v.  Powell,   1  Hutton,   135 43 

Jones  v.  St.   Paul  M.  &  M.   R.   Co.,   16  Wash.  25 433 

Jones  v.  Williamsburg,  97  Va.  722 354 

Jordan  v.  Helwig,  1   Wils.   (  End.)   447 447,  459,  462,  485 

Jordan  v.  Sutton,  Southcoats  7  Drypool  Gas  Co.,  67  L.  J.  Ch.  N.  S.  666 .  .  30 

Jordeson  v.  Sutton,  68  L.  J.  Ch.  N.  S.  666 415 

lix 


Table  of  Cases. 

Sec. 

Jordeson  v.  Sutton   (C.  A.),  6S  L.  J.  Ch.  X.  S.  457 76 

Jung  v.  Xeraz.  71  Tex.  39G 393,  446 

Jutte   v.   Hughes,    67    X.    Y.    267 170,  490 

Kaje  v.  Chicago  St.  P.  M.  &  0.  Ry.  Co.,  57  Minn.  422 222 

Kallsen  v.  Wilson,  SO  Iowa,  229 332 

Kalteyer  v.  Sullivan,  18  Tex.  Civ.  App.  488 222,  260,  264 

Kankakee  S.  R.  Co.  v.  Horan,  131  111.  28S 40,  259,  317 

Kane  v.  New  York  Elevated  R.  Co.,  125  X.  Y.   164 36 

Kansas  v.  Colorado,  1S5  U.  S.   125 299 

Kansas  v.  Hedeen,  47   Kan.  402 216 

Kansas  City  v.  Lemen,  57  Fed.  905 115 

Kansas    City   v.   MeAleer,    31    Mo.   App.    433 3,97,332,  334 

Karl  v.  Juniata  County,  200  Pa.  6S3 472 

Kasper    v.    Dawson,    71    Conn.    405 35,  207 

Kay    v.    Kirk,    76    Md.    41 312 

Kaufman  v.  Stein,  138  Ind.  49 422,  435 

Kavanagh  v.   Barber,    131   X.   Y.   211 9,  13,  444 

Kavanaugh  v.  Mobile  &  G.  R.  Co.,  78  Ga.  803 249 

Keating  v.   Springer,   146    111.    481 36 

Keeler  v.  Lederer  Realty  Co.,  26  R.  I.  524 237,  404 

Keiser  v.  Lovett,  85  Ind  240 204,  205 

Keitli  v.  Easton,  2  Allen    ( Mass. ) ,  552 255 

Kelk  v.  Pearson,  L.  R.   6   Ch.   809 36 

Kelley  v.   Xew  York,   89   Hun    (X.   Y.)k   246 53 

Kelley  v.  Xew  York,   6  Misc.  R.    (X.  Y.)516 53,  304  372 

Kelley  v.  Pittsburg,  C.  C.  &  St,  L.  R.  Co.,  28  Ind.  App.  457 317,  328 

Kellogg  v.  City  of  Xew  Britain,  62  Conn.  232 27S 

Kelly  v.  Xew  York.  27  X.  Y.  Supp.  164 304 

Kennedy  v.  Burnap,   120  Cal.  488 36 

Kennedy  v.  Phelps,  10  La.  Ann.  227 345,  348 

Kennerty  v.  Etiwan  Phosphate  Co.,   17   S.  C.   411 417 

Kensington  v.   Wood,   10   Pa.   St.   93 355,  497 

Keokuk  v.  Scroggs,  39  Iowa,  447 329,  341 

Kepple  v.  Lelingle  Coal  &  Xav.  Co.,  200  Pa.  St.  649 3-29 

Kerkman  v.  Handy,   1 1   Humph.   406 417 

:.  v.  Myll  80  Mich.  525 467 

Kernochan  v.  Manhattan  Ry.    101  X.  Y.   345 493 

Kernochan  v.   New  York  Elev.  R.   Co.,   12S  X.  Y.  559 493 

"er  v.   Letts,  7   Ohio   Cir.    Ct.   R.    10S 404 

Kewanee  v.   GuilfoiL   SI   Mo.   App.   490 329 

Kewanee  v.  Ladd,  68  111.   App.   154 477 

lx 


Table  of  Cases. 

Sec. 

Kewanee  v.  Otley,  204  111.  402 265,  266,  267,  363,  417,  477,  487 

Keys  v.  Second  Baptist  Church,  99  Me.  308 472 

Keystone  Bridge  Co.  v.  Summers,  13  W.  Va.  476,  485 218 

Kidson  v.  Bangor,  99  Me.   139 279 

Kiel  v.  Jackson,   13  Colo.   378 422,432,  436 

Kimberly  &  C.  Co.  v.  Hewitt,  79  Wis.  334 312 

King  v.  Bell,   1  L.  J.  0.   S.  K.  B.  42 273 

King  v.  Davenport,   98   111.   305 3,  5 

King  v.   Hamill,   97   Md.    103 200,204,  205 

King  v.  Inhabitants  of  West  Riding,  2  East,  342 274 

King  v.  Lloyd,  4  Esp.  200 5 

King  v.  Morris  &  Essex  R.  R.  Co.,  18  N.  J.  Eq.  397 5,  49,  75,  438,  486 

King  v.  Russell,   6   East,   427 212,  223 

King  v.  Shepard,  1  L.  J.  0.  S.  K.  B.  45 273 

King  v.   Stead,   8   Durnf.   &  E.    142 416 

King  v.  Thompson,  87  Pa.  St.  365 231 

King  v.  Trafford,  1  B.  &  Ad.  874 474 

King  v.  Watts,  2  Esp.  675 273 

King  v.  Wharton,  12  Mod.  510 369 

King.     See  Rex. 

Kingsbury  v.  Flowers,  65  Ala.  479 393,  475 

Kings  County  Sup'rs  v.  Sea  View  Ry.  Co.,  23  Hun  (N.  Y.),  180 245 

Kinnaird  v.  Standard  Oil  Co.,  89  Ky.  468 27,  382 

Kinney  v.  Koopman  &  Gerdes,  116  Ala.  310 6,  14,  16,  384 

Kinson  Pottery  Co.  v.  Poole    (1899),  2  Q.  B.  41 316 

Kintz    v.    McNeal,    1    Denio,    436 360 

Kirchgraber  v.  Lloyd,   59   Mo.  App.   59 Ill,  139 

Kirkheaton  Local  Board  v.  Ainley,  61  C.  J.  Q.  B.  812    (1892),  2  Q.  B. 

274   487 

Kirkman  v.  Handy,  11  Humph.    (Tenn.)    406 200,  201 

Kirkpatrick  v.  Knapp,  28  Mo.  App.  431 231 

Kirkwood  v.   Cairns,  44  Mo.  App.   S8 302 

Kirkwood  v.  Finegan,  95  Mich.  543 404 

Kissel  v.  Lewis,   156  Ind.  233 5,  13,  14,  49,  74,  416,  428,  429,  436,  478 

Kleebauer  v.  Western  Fuse  &  Explosives  Co.,  138  Cal.  497 383,  384,  385 

Klei-n  v.  Gehring,  25  Tex.  Suppl.  232 36 

Kleopfert  v.  Minneapolis    (Minn.) ,  100  N.  W.   669 279 

Klepsch  v.  Donald,  4  Wash.  439 382 

Knapp  &  Co.  v.  St.  Louis  Transfer  Co.,  126  Mo.  25 247 

Knickerbocker  Ice  Co.  v.  Shultz,  116  N.  Y.  382,  389 59,  63 

Knight  v.  Goodyear's  India  Rubber  G.  M.  Co.,  38  Conn.  438 180 

Knight  v.  Isle  of  Wight  Elec.  L.  &  P.  Co.,  73  L.  J.  Ch.  299 176 

lxi 


Table  of  Cases. 

Sec. 

Knowles  v.  Pennsylvania  R.  R.  Co.,  175  Pa.  St.  623 213,  240 

Knowles    v.    Richardson,    1    Mod.    55 36 

Knox  v.  City  of  New  York,  55  Barb.  404 415 

Knoxville  v.  Chicago,  B.  &  Q.  R.  Co.,  83  Iowa,  636 ,  329 

Knoxville  v.  Klasing  (Tenn.  1903),  76  S.  W.  814 282 

Kobbe  v.  New  Brighton,  23  App.  Div.   (N.  Y.)   243 73 

Koehl    v.    Schoenhausen,    47    La.    Ann.    1316 ,74,416,  487 

Kolb  v.  Knoxville  City,   111   Tenn.   311 : .  448 

Kolb  v.  Mayor  of  Knoxville   (Tenn.  S.  C.  1903),  76  S.  W.  823 353 

Korn  v.  Weir,  88  N.  Y.  Supp.  976 472 

Korte  v.   St.  Paul  Trust  Co.,   54  Minn.  530 231,  232 

Kothenberthal  v.  Salem  Co.,  13  Oreg.  604 363,  416 

Kotz  v.  Illinois  Cent.  R.  Co.,  188  111.  578 36 

Ktats   v.    Hugo,    115    Mass.    204 36 

Kueehenmeister  v.  Brown,   1  X.  Y.  App.  Div.  56 468 

Kuechenmeister  v.  Brown,   13  Misc.   R.    (N.  Y.)    139 78 

Kueckel  v.  Ryder,  170  N.  Y.  562 472 

Kuehn   v.   Milwaukee,   92   Wis.   263 311 

Kuehn  v.  Milwaukee.  83  Wis.  583 276 

Kuhn  v.  Illinois  Cent.  R.  Co.,  Ill  111.  App.  323 423 

Kuzniak  v.  Kozminski,   107  Mich.   444 37,  43 

Kyne  v.  Wilmington  &  W.  R.  Co.,  8  Houst.   (Del.)    185 243 

Ladd  v.  Boston,   151  Mass.  585 36 

Ladd  v.  Granite  State  Brick  Co.,  68  N.  H.  185 145 

Ladies'  Decorative  Art  Club's  Appeal    (Pa,   1888),  13  Atl.  537.. 176 

Lafflin  &  Rand  Powder  Co.  v.  Tearney,  131  111.  322 9,  11,  44,  97,  383 

384, 385,  485 

Lake  v.  Aberdeen,  57  Miss.  260 332,  346 

Lake  v.  Milliken,   62  Mo.   240 255 

Lake  Shore  &  Michigan  R.  v.  Chicago,  165  U.  S.  365 274 

Lake  Shore  R.  R.  Co.  v.  Ohio,  165  U.  S.  365 , 326 

Lake  View  v.   Letz,   44    111.    81 338, 415,  416,  417 

Lakeview  v.  Rose  Hill  Cemetery,  70  111.  191 393 

Lake  View  v.  Tate,  33  111.  App.  78 335,  339 

Lamary  v.  Fulton,  109  N.  Y.  App.  Div.  424 396 

Lambeau   v.   Lewinski,   47    111.    App.    656 97 

Lambton  v.   Mellish    (1894),   3   Ch.   163 474 

Lambton  v.  Mellish,  63  L.  J.  Ch.  D.  929 23 

Lammers  v.   Brennan,   46  Minn.   209 433 

Lamming  v.   Galusha,   135   N.   Y.   239 44 

Lampe  v.  San  Francisco,  124  Cal.  546 279 

Ixii 


Table  of  Cases. 

Sec. 

Lamprey  v.  State,  52  Minn.   181 272 

Lancaster  v.  Barnes  Dist.  Council,   1   Q.  B.  855 308 

Lancaster  Turnpike  Co.  v.   Rogers,  2  Pa.   114 3,  6,  257,  368,  371,  374 

Landau  v.  New  York,  90  App.  Div.   (N.  Y.)   50 258,  385,  448 

Lane   v.    Concord,    70   N.   H.    485 396,  438 

Lane  v.  New  Haven  Harbor  Comm'rs,  70  Conn.  685 275 

Lansborn  v.  Covington,  2  Md.  Ch.  209 416 

Lang  v.  Merwin,  99  Me.  486 365,  409 

Langabaugh   v.    Anderson,    68   Ohio,    131 28,  387,  388,  461,  466 

Langdon  v.  Mayor  of  New  York,  93  N.  Y.  129 63 

Langfeldt  v.  MeGrath,  33  111.  App.   15S 41,  404 

Langley   v.    Augusta,    118    Ga.    590 279, 293,  308 

Lansdowne  v.   McEwen,  7   Del.   Co.   R.   311 61 

Lansing  v.  Smith,  4  Wend.    (N.  Y.)    9 13,  14,  39,  422,  423,  428,  486 

Lapere   v.    Luckey,    23   Kan.    534 36,  445 

Larimer  &  L.  Street  R.  Co.  v.  Larimer  St.  R.  Co.,  137  Pa.  533 246 

Larson  v.  Furlong,  63  Wis.  323 371 

Larson  v.  Furlong,  50  WTis.  681,  686 369,  370 

Lasala  v.  Holbrook,  4  Paige's  Ch.  169 30,  60 

Lasbury  v.  McCague,  56  Neb.  220 84,  305 

Lassater  v.   Garrett,  4   Baxt.   368 415 

Latta  v.  United  States  Express  Co.    ( Iowa ) ,  92  N.  W.  68 399 

Laufers-Weiler  v.  Borchardt,  88  N.  Y.   Supp.  985 466 

Laugel  v.  Bushnell,  197  111.  20 16,  150,  334,  339 

Laugel  v.  Bushnell,  96  111.  App.  618 399 

Laughlin  v.  Lamasco  City,  6  Ind.  223 415 

Lavery  v.  Hannigan,   52  N.  Y.   Super.  463 37,  227 

Laviosa  v.  Chicago,  St.  L.  &  N.  0.  R.  Co.,  1  McGloin   (La.),  299,  303 ..  .  262 

Lawton  v.  Olmstead,  40  App.  Div.    (N.  Y.)    544 258 

Lawton  v.  Connor,  40  Fed.  480 272 

Lawton   v.    Steele,    162    U.    S.    133 276 

Lawton  v.  Steele,  119  N.  Y.  226 81,  82,  83,  330,  367,  368,  370,  372,  380 

Lea  Conservancy  Board  v.  Hertford  Corporation,   1   Cav.  &  E.  299 298 

Leahan  v.  Cochran,  178  Mass.  566 237 

Learned  v.  Castle,  78  Cal.  454 4,  39,  313,  329,  410,  474,  485 

Learned  v.  Castle    (Cal.),  4  Pae.    191 501 

Learned  v.   Hunt,   63   Miss.   363 24,  415,  416,  417 

Lee  v.  Vacuam  Oil  Co.,  54  Hun   ( N.  Y. ) ,  156 387 

Lefrois   v.   Monroe  County,    162   N.   Y.    503 279, 286,  449 

Lefrois  v.   Munroe  County,   88   Hun,    109 392 

Leeds  v.  Bohemian  Art  Glass  Works,  65  N.  J.  Eq.  402 96 

Legg  v.  Anderson,  116  Ga.  401 366,  399,  438,  446 

Ixiii 


Table  of  Cases. 

Sec. 

Lehmkuhl,  Ex  parte,  72  Cal.  53 4 

Lemon  v.  Newton,  134  Mass.  476 307 

Lenderink  v.  Rockford,  135  Mich.  531 472 

Leonard  v.  Hornellsville,  41  App.  Div.  106 354,  358 

Leonard  v.  Spencer,  108  N.  Y.  338,  368 320,  422,  442,  443,  485 

Leonard   v.    Spencer,   34   Hun    (N.   Y.),    341 305 

Leonard    v.    Storer,    115    Mass.    86 337,  471 

Leovy  v.  United  States,    177   U.   S.   621 272,  274 

Lester  v.  Mayor,  69  Miss.  887 293 

Letts    v.    Kessler,    54    Ohio    St.    73 37 

Leverick  v.   City   of   Mobile,    110    Fed.    170 272,  275 

Levy  v.  Mayor,  1  Sandf.  (N.  Y.)  465 354 

Levy  v.  Samuel,  23  N.  Y.  Supp.  825 36 

Lewis  v.  Alexander,  24  Can.  S.  C.  551 280 

Lewis  v.  Alexander,  21  Ont.  App.  613 316 

Lewis  v.  Bohan  Thorn  &  Co.,  28  La.  Ann.  131 147,  399 

Lewis   v.   Portland,   40   Oreg.   244 275 

Lewis   v.   Stein,    16   Ala.   214 56,310  311 

Lewiston  v.   Booth,   3   Idaho,   692 52 

Lexington  v.  Batson,  26  Ky.  L.  Rep.  363 279 

Lexington  &  Ohio  R.  R.  Co.  v.  Applegate,  8  Dana  (Ky.)  289,  299 59,  61 

78,  242 

Ligare  v.  Chicago  M.  &  N.  R.  Co.,  166  111.  249 272 

Liles  v.  Cawthorne,  78  Miss.  559,  564 261,  321,  374,  375 

Lillywhite  v.  Trimmer,  36  L.  J.  Ch.  525,  15  W.  R.  763 484,  486 

Lind   v.   San  Luis   Obispo,   109   Cal.   340 416,422,  436 

Lipman  v.  Pulman  &  Sons,  91  Law  T.   (N.  S.)    132 191 

Lippincott  v.  Lasher,  44  N.  J.  Eq.  420 43 

Litchfield  v.  Whitenaek,  78  111.  App.   366 50,  488 

Little   v.    Madison,   42    Wis.    643 255,  256 

Little  Rock,  Mississippi  River  &  Tex.  R.  Co.  v.  Brooks,  39  Ark.  403.  .422,  434 

Littleton   v.    Fritz,    65   Iowa,    488 399, 438  446 

Livezey  v.  Schmidt,  16  Ky.  L.  Rep.  596 316 

Llano  v.  Llano  County,  5  Tex.  Civ.  App.  132 212,  213 

Lloyd  v.   Columbus,    90   Ga.   20 293 

Loberg  v.  Amherst,  87  Wis.  634 229 

Lockett  v.  Ft.  Worth  &  R.  G.  R.  Co.,  78  Tex.  211 445 

Loftin   v.    M'Lemore,    1    Stew.     (Ala)     133 455 

Lofton  v.  Collins,   117  Ga.  434 399 

Lohmiller  v.  Indian  Ford  Water  P.  Co.,  51  Wis.  683 49,  447 

London  v.  Mullins,  52  111.  App.  410 456 

Long  v.   Emporia,  59  Kan.  46 278,  448 

Lriv 


Table  of  Cases. 

Sec. 

Long  v.  Minneapolis,  61  Minn.  46 430 

Lonsdale  Co.  v.  Cook   (R.  I.),  44  Atl.  929 485 

Lonsdale   Co.   v.   Woonsocket,   25   R.   I.   428 312 

Lorain  v.  Rolling,  24  Ohio  Cir.  Ct.  R.  82 397 

Lord    v.    Chadbourne,    42    Me.    429 399 

Lord  v.  DeWitt,    116   Fed.   713 183 

Lord    v.    Langdon,    91    Me.    221 83,  403 

Los  Angeles  v.  Pomeroy,  124  Cal.  640 308 

Los  Angeles  County  v.  Hollywood  Cemetery  Assoc.,   124  Cal.  S44 393 

Los  Angeles  County  v.   Spencer,   126  Cal.  670 381 

Losee   v.   Buchanan,   51    N.   Y.   476 270,  382, 385,  398 

Loughram  v.  Des  Moines,  72  Iowa,  382,  386 41,  142,  164,  474 

Louis  Coffin  Co.  v.  Warren,  78  Ky.  400 140 

Louisiana  v.  Heidenhain,  42  La.  Ann.  483 154 

Louisville  &  N.  R.  Co.  v.  Commonwealth    (Super.  Ct.),  16  Ky.  L.  Rep. 

347    11,  44,  248,  367 

Louisville  &  N.  R.  Co.  v.  Jacobs,  109  Tenn.  727 76 

Louisville  &  N.  R.  Co.  v.  Orr,  12  Ky.  Law  Rep.  756,  15  S.  W.  8 147,  242 

Louisville  &  JST.  R.  Co.  v.  Hall,  87  Ala.  708 250 

Louisville,  Cincinnati  &  Lexington  R.  Co.  v.  Commonwealth,  80  Ky.  143.  .  450 

Louisville  City  R.  Co.  v.  Louisville,  8  Bush   (Ky.)   416,  422 345 

Louisville,  N.  A.  &  C.  R.  v.  Wright,  115  Ind.  378 25l> 

Louisville  R.  R.  Co.  v.  State,  3  Head    (Tenn. ) ,  523 450 

Lounsbury  v.  Foss,  80  Hun,  296 383,  384 

Low  v.  Knowlton,  26  Me.   128 429 

Lowe  v.  Holbrook,  71  Ga.  563 396 

Lowe  v.  Prospect  Hill  Cemetery  Ass'n,  58  Neb.  94 11,  393 

Lownsdale  v.  Gray's  Harbor  Boom  Co.,  117  Fed.  983 433 

Lull  v.  Improvement  Co.,  19  Wis.  101 142 

Luning  v.   State,  2   Pin.    (Wis.)    215 322 

Lurssen  v.  Lloyd,  76  Md.  360,  367 135,  443,  445 

Luxton  v.  North  River  Bridge  Co.,   153  U.  S.  525 274 

Lyles  v.  Cawthorne,  78  Miss.  559 266,  321,  374,  375 

Lynch  v.  Mayor  of  New  York,  76  N.  Y.  60 355,  448 

Lynch  v.  Met.  Elev.  R.  Co.,  129  N.  Y.  274 493 

Lynch  v.  Springfield,    174  Mass.   130 279 

Lynn  v.  Hooper,  93  Me.  46 255 

Lyons  v.  Wilkins  (1899),  1  Ch.  255,  68  L.  J.  Ch.  146 436,  475,  46  6 

Lytle  Creek  Water  Co.  v.  Perdew,  65  Cal.  447 4 

Mackay,  Smith  v.  Crawford,  56  App.  Div.   (N.  Y.)    136 173 

Macomber  v.  Nichols,  34  Mich.   212 212  256 

lxv 


Table  of  Cases. 

Sec. 

Madison  v.  Ducktown  Sulphur  Copper  Iron  Co.,  113  Tenn.  331 485 

Madison  Ave.  Baptist  Church  v.  Oliver  Street  Baptist  Church,  73  N.  Y. 

82 493 

Maenner  v.  Carroll,  46  Md.  216 462,  466 

Mahady  v.  Bushwick  R.  R.  Co.,  91  N.  Y.  148 248 

Mahan  v.  Brown,  13  Wend.   (N.  Y.)   261 36,  37,  39,  43 

Mahan  v.  Doggett,  25  Ky.  Law  R.  103 501 

Mahler  v.  Brunder,  92  Wis.  477 430 

Malton  Local  Board  v.  Malton  Farmers  Manure  Co.,  49  L.  J.  M.  C.  90.  .  .  20 

Managers  of  the  Metropolitan  Asylum  Dist.  v.  Hill,  6  App.  Cas.  193 ....  76 

Manchester  v.  Smyth,  64  N.  Y.  3S0 332 

Manchester-Sheffield  &  Lancaster  Ry.  Co.  v.  Worksop  Board  of  Health, 

23   Beav.    178 288,  316 

Manhattan  Mfg.  &  F.  Co.  v.  Van  Keuren,  23  N.  J.  Eq.  251,  255.  .352.  368,  380 

Manigault  v.  S.  M.  Ward  &  Co.,  123  Fed.  707 272 

Manigault  v.  Springs,  199  U.  S.  477 326 

Mauley  v.  St.  Helen's  Canal  &  Ry.  Co.,  2  Hurls  &  Norm,  840 220 

Mann  v.  Weiand,  81  Pa.  St.  243 192 

Mann  v.  Willey,  51  App.  Div.  169,  64  N.  Y.  Supp.  589 80,  310 

Manning  v.  Bruce,  186  Mass.  282 505 

Mansfield  v.  Balliett,  65  Ohio  St.  451 265.  278,  284,  290,  312,  317 

Mansfield  v.  Hunt,  19  Ohio  Cir.  Ct.  R.  488 24,  40,  41,  488,  489 

Manville  Co.  v.  Wooster,  38  Mass.  89 299 

Marine  Ins.  Co.  v.  St.  Louis,  I.  M.  &  S.  R.  Co.,  41  Fed.  643 227,  258 

Marini  v.  Graham,  67  Cal.  130 78 

Markowitz  v.  Dry  Dock  E.  B.  &  B.  R.  Co.,  12  Misc.  R.   (N.  Y.)   412 251 

Markt  v.  Davis,  46  Mo.  App.  272 24 

Mans  v.  Fiddler,  24  Ky.  Law  Rep.  722 107,  419 

Marsan  v.  French,  61  Tex.  173 473 

Marsel  v.  Bowman,   62  Iowa,  57 192 

Marshall  v.  Cohen,  44  Ga.  489 467 

Marshall  v.  Wellwood,  38  N.  J.  L.   339 382,  385,  398 

Martin  v.  Board  of  Commissioners,  27  Ind.  App.  98 331 

Martin  v.  Heckman,    1   Alaska,   165 275 

Martin  v.  Marks,   154  Ind.  549 422,  432 

Martin  v.  New  York,  77  N.  Y.  Supp.  1013 415 

Martin  v.  Waddell,  16  Pet.    (U.   S.)    367 63,  272 

Martinowsky  v.  Hannibal,   35  Mo.  App.   70 448 

Martinowsky  v.  Hannibal,  8  Mo.  App.  70 474 

Mason  v.  Mattoon,  95  111.  App.  525 284,  329,  410 

Mason  v.  Ohio  River  R.  Co.,  51  W.  Va.  183 242 

Masonic  Assoc,  v.  Harris,  79  Me.  250 306,  328,  378. 

lxvi 


Table  of  Cases. 

Sec. 

Masonic  Temple  Assoc  v.  Banks,  94  Va.  695 320,  486 

Mason  City  v.  Barngrover,  20  111.  App.  296 339 

Masterson  v.  Short,  30  N.  Y.  Super.  Ct.  241 80 

Masterson  v.  Short,  3  Abb.  Prac.   (N.  Y.)    154 67 

Matheney  v.  Aiken,  68  S.  C.  163 294 

Mathews  v.  Kelsey,  58  Me.  56 226 

Matter  of.     See  Name. 

Matthews  v.  Missouri  Pacific  Ry.  Co.,  26  Mo.  App.  75 217 

Matthews  v.  Stillwater  Gas  &  E.  L.  Co.,  63  Minn.  493 56,  57 

Mauske  v.  Milwaukee  (Wis.),  101  N.  W.  377 279 

Maxwell  v.  Boyne,  36  Ind.  120 416 

Maxwell  v.  Shirts,  27  Ind.  App.  529 322,  323,  466 

May  v.  People,  1  Colo.  App.  157 335 

Mayor  of  Albany  v.  Cunliff,  2  N.  Y.  165,  174 454 

Mayor  &  City  Council  of  Baltimore  v.  Marriott,  9  Md.  160 46 

Mayor  &  Council  of  Baltimore  v.  Radecke,  49  Md.  217 398 

Mayor  of  Jersey  City  v.  Central  Railroad  Co.  of  N.  J.,  40  N.  J.  Eq.  417 . .  72 

Mayor  of  Montezuma  v.  Minor,  73  Ga.  484 305 

Mayor  of.     See  Name  of  City. 

Mazza  v.  Hester,  1  Wkly.  C.  Bull.  375 416 

McAllister  v,  Clark,  33  Conn.  91 391 

McAndrews  v.  Collerd,  42  N.  J.  L.  ISO 74,  89 

McBride  v.  Akron,  12  Ohio  C.  C.  610 281,  286 

McBryan  v.  Canadian  Pac.  R.  Co.,  29  Can.  Sup.  Ct.  373 382 

McCaffrey  v.  Smith,  41  Hun    (N.  Y.) ,  117 80 

McCaffrey's  Appeal,  105  Pa.  St.  25 184 

McCann  v.  Strang,  97  Wis.  551 93,  175,  1S3 

McCarrier  v.  Hollister,  15  S.  Dak.  366 472 

McCarthy  v.  Far  Rockaway,  3  App.  Div.   (N.  Y.)   381 355 

McCarthy  v.  Gaston  Ridge  M.  &  M.  Co.,  144  Cal.  542 265,  487,  493 

McCarthy  v.  Murphy,  119  Wis.  159 275 

McCaskill  v.  Elliott,  5  Str.  L.  ( S.  C. )   196 192 

McCloskey  v.  Kreling,  76  Cal.  511 435,  343 

McClung  v.  North  Bend  Coal  &  C.  Co.,  9  Ohio  Cir.  Ct.  R.  259 2,  99 

112,  143 

McClung  v.  North  Bend  Coal  &  C.  Co.,  31  Ohio  L.  J.  9 415,  485 

McCombs  v.  Akron,   15  Ohio,  474 329 

McCook  Irrig.  Water  &  Power  Co.  v.  Crews  (Neb.  1903),  96  N.  W.  990.  .  265 

McCord  &  Hunt  v.  Iker,  12  Ohio  Dec.  390 407,  415,  416,  417 

McCoy  v.  Clark,  109  Iowa,  464 399,  416 

McCoy  v.  Clark   (Towa) ,  81  N.  W.   159 459 

McCrowell  v.  Town  of  Bristol,  5  Lea   (Tenn.) ,  685 358 

lxvii 


Table  of  Cases. 

Sec. 

McCray  v.  Fairmount,  46  W.  Va.  442 279 

McDermott  v.  Conley,  11  N.  Y.  Supp.  403 217 

McDonald  v.  Duluth,  93  Minn.  206 279 

McDonald  v.  English,  85  111.  232 218,  234 

McDonald  v.  Lannen,  19  Mont.  78 265 

McDonald  v.  Newark,  42  N.  J.  Eq.  136 79,  228,  233 

McDonald  v.  O'Reilly,  45  Oreg.  589 472 

McDonald  v.  Southern  Cal.  R.  Co.,  101  Cal.  206 317 

McDonnell  v.  Cambridge  R.  Co.,  151  Mass.  159 429,  432 

McDonough  v.   Gilman,  3  Allen    (Mass.),   264 458,  468 

McDonough  v.  Robbens,  60  Me.  App.  156 157 

McGregor  v.  Camden,  47  W.  Va.  193 386,  388,  409 

McGuire  v.  Bloomingdale,  33  Misc.  R.   (N.  Y.)   337 182,  183 

McKee  v.  Grand  Rapids,  11  Det.  L.  News,  259 412 

McKeesport  Sawmill  Co.  v.  Pennsylvania  Co.,  122  Fed.  184 376 

McKeon  v.  New  York,  New  Haven  &  Hartford  R.  Co.,  75  Conn.  343 316 

McKeon  v.  See,  27  N.  Y.  Super.   (4  Rob.)  449,  465 99,  184,  188 

McKeon  v.  See,  51  N.  Y.  300 19,  41 

McKevitt  v.  Hoboken,  45  N.  J.  L.  482 280 

McKibbin  v.  Fort  Smith,  35  Ark.  352 349 

Mcintosh  v.  Carritte,  N.  B.  Eq.  Cas.  406 157 

McLauchlin  v.  Charlotte  &  So.  Car.  R.  Co.,  5  Rich.  Law,  583 28 

McLane  v.  Leicht,  69  Iowa,  401 399 

McLean  v.  Matthews,  7  111.  App.  599 273,  275,  36S 

McMenomy  v.  Band,   87   Cal.   134 119,  41G 

McMorran  v.  Fitzgerald,  106  Mich.  649 95 

McNeill  v.  Crucible  Steel  Co.,  207  Pa.  493 472 

McWethy  v.  Aurora  Elec.  L.  &  P.  Co.,  202  111.  218 261 

Mears  v.  Dole,   135   Mass.  510 385 

Mechling  v.  Kittining  Bridge  Co.,   1  Grant's  Cas.  416 365 

Medford  v.  Levy,  31  VV.  Va.  649 43,  402 

Medford  v.  Levy,  2  L.  R.  A.  363 415 

Meek  v.  De  Latour   (Cal.),  83  Pac.  300 428,  489 

Meeker  v.  Van  Rensselaer,  15  Wend.   (N.  Y.)  397 3,  371,  397 

Meigs  v.  Lister,  23  N.  J.  Eq.  199 24,  116,  158,  166 

Mehrhof  Bros.  Brick  Mfg.  Co.  v.  Delaware,  L.  &  W.  R.  Co.,  51  N.  J.  L.  26.  422 

Meiners  v.  Miller  Brewing  Co.,  78  Wis.  364 50,  429 

Mellor  v.  Pilgrim,  3  111.  App.  476 459 

Memphis  v.  Miller,  78  Mo.  App.  67 231 

Mende  v.  Sociala  Turn  Verein,  66  111.  App.  591 109 

Mercer  v.  Pittsburg,  Fort  Wayne  &  Chic.  R.  R.  Co.,  36  Pa.  St.  99 78 

Mercer  County  v.  Harrodsburg,  24  Ky.  Law  R.  1651 79 

lxviii 


Table  of  Cases. 

Sec. 

Mercer  County  v.  Harrodsburg,  23  Ky.  Law  Rep.  1744 263 

Merchants'  Union  Barb  Wire  Co.  v.  Chicago,  B.  &  Q.  Ry.  Co.,  70  Iowa, 


105. 


78 

Mergentheim  v.  State,  107  Ind.  567 486 

Merrifield  v.   Swift,   103  Iowa,   167 416 

Merrifield  v.  Worcester,   110  Mass.  216 270,  287,  289 

Merrill  v.  St.  Louis,  83  Mo.  244 11 

Merritt  Twp.  v.  Harp,  131  Mich.  174 313,  438,  439,  448 

Metropolitan  City  R.  Co.  v.  Chicago,  96  111.  620 242,  246 

Metropolitan  Saving  Bk.  v.  Marion,  87  Md.  68,  69 200,  201,  207,  462,  466 

Metropolitan  West  Side  Elev.  R.  Co.  v.  Goll,  101  111.  App.  323 174,  182 

Metropolitan  West  Side  Elevated  R.  Co.  v.  Springer,  171  111.  170 36 

Meyer  v.  Harris,  61  N.  J.  L.  83 454,  457,  460,  469 

Meyer  v.  Jones,  20  Ky.  Law  Rep.  1632 198 

Meyer  v.   Meltzer,  51   Cal.   142 4,  404 

Meyers  v,  Gernmel,  10  Barb.  537 36 

Michel  v.  Munroe  County  Supervisors,  39  Hun  (N.  Y.) ,  47 41 

Michigan  City  v.  Boeckling,  122  Ind.   39 78 

Middlebrook  v.  Wayne,  96  Ga.  452 327,  455,  456,  457 

Middlesex  County  v.  McCue,  149  Mass.  103 33 

Middlestadt  v.  Waupaca  Starch  &  P.  Co.,  93  Wis.  1 443 

Middleton  v.   Franklin,  3   Cal.  238 415 

Mikesell  v.  Durkee,  34  Kan.  509 80 

Milburn  v.  Cedar  Rapids,  12  Iowa,  246 78,  242 

Miles  v.  Worcester,   154  Mass.  511 355 

Miley  v.  A'Hearn,  13  Ky.  L.  Rep.  834 405 

Milhau  v.  Sharp,  27  N.  Y.  611 422 

Milhau  v.  Sharp,  28   Barb.  228 429 

Milhau  v.  Sharp,  15  Barb.  (N.  Y.)   193 61 

Millard  v.  Wastall   (Q.  B.) ,  77  Law  T.  R.  692 155 

Miller  v.  Burch,  32  Tex.  208 3,  80,  101,  330,  350,  487 

Miller  v.  Detroit,  Ypsilanti  &  A.  A.  Ry.  Co.,  125  Mich.  171 252 

Miller  v.  Edison  Elec.  Ilium.  Co.,  184  N.  Y.  17 443,  445,  493 

Miller  v.  Edison  Elec.  Ilium.  Co.,  66  App.  Div.   (N.  Y.)   470 91 

Miller  v.  Edison  Elec.  Ilium.  Co.,  33  Misc.  R.   (N.  Y.)   664 187,  191 

Miller  v.  Enterprise  Canal  Co.,  142  Cal.  20S 272 

Miller  v.  Keokuk  &  Des  Moines  R.  Co.,  63  Iowa,  680 367,  443 

Miller  v.  Long  Island  R.  Co.,  Fed.  Cas.  No.  9580a 70,  258,  436 

Miller  v.  Mayor  of  New  York,  109  U.  S.  385 274 

Miller  v.  Minneapolis,  75  Minn.  431 279 

Miller  v.  Newport  News,   101  Va.  432 264 

Miller  v.  People,  5  Barb.  203 414 

lxix 


Table  or  Cases. 

Sec. 

Miller  v.  Schenck,  78  Iowa,  373 432 

Miller  v.  Schindle,   15  Pa.  Co.  Ct.  R.  341 122,  182 

Miller  v.  Sergeant,  10  Ind.  App.  22 345 

Miller  v.  Sergeant  (Ind.  App.),  37  N.  E.  418 455 

Miller  v.  Truehead,  4  Leigh   (Va.),  569 320 

Miller  v.  Webster,   94  Iowa,   162 69,  79,  90 

Millett  v.  St.  Albans,  69  Vt.  330 264 

Millhiser  v.  Willard,  96  Iowa,  327 116,  158 

Mills  v.  Evans,  100  Iowa,  712 275 

Mills  v.  Hall,  9  Wend.   (N.  Y. )   315 50 

Mills  v.  New  York  &  Harlem  R.  R.  Co.,  2  Rob.  (N.  Y.  Super.  Ct.)  326. .  193 

Milnes  Appeal,  81  Pa.  St.  54 36 

Mineral  Wells  v.  Russell   (Tex.  Civ.  App.,  1902),  70  S.  W.  453 396 

Minke  v.  Hofeman,  87   111.  450 127,  131 

Minneapolis  Mill  Co.  v.  St.  Paul  Water  Conim'rs,  56  Minn.  485 272 

Minor  et  al.  v.  De  Vaughn,  72  Ga.  208 324 

Minturn  v.  Larue,  23  How.    ( U.  S. )   435 342 

Mirkil  v.  Morgan,  134  Pa.  144 415 

Missano  v.  New  York,  160  N.  Y.   123 279 

Mission  Rock  Co.  v.  United  States,  109  Fed.  763 272 

-Mississippi  &  Mo.  R.  R.  Co.  v.  Ward,  2  Black  (67  U.  S.),  485 274,  422 

429, 446,  474 

Mississippi  Mills  Co.  v.  Smith,  69  Miss.  299 303 

Missouri  v.  Illinois,  200  U.  S.  part  5 274,  299,  309,  310,  477 

Missouri  v.  Keyes,  55  Kan.  205 312 

Missouri,  K.  &  T.  Ry.  Co.  v.  Burt,  Tex.  Civ.  App.  27  S.  W.  948 45,  199 

Missouri,  K.  &  T.  R.  Co.  v.  Dennis  (Tex.  Civ.  App.),  84  S.  W.  860 489 

Missouri,  K.  &  T.  Ry.  Co.  v.  McGehee  (Tex.  Civ.  App.,  1903),  75  S.  W. 

841 40 

Missouri  P.  R.  Co.  v.  Webster,  3  Kan.  App.  106 317,  457,  458 

Mitchell  v.  Rome,  49  Ga.  19 36 

Mobile  v.  Louisville  &  N.  R.  Co.,  84  Ala.   119 242.  366 

Mobile  v.  Sullivan  Timber  Co.,  129  Fed.  298 272 

Mobile  Transportation  Co.  v.  City  of  Mobile,  187  U.  S.  479 272 

Moffett  v.  Brewer,   1  G.  Green    (Iowa),  348 319,370,374,376,  378 

Mohawk  Bridge  Co.  v.  Utica  &  Schenectady  R.  R.  Co.,  6  Paige  Ch.   (N. 

Y.)    555 19,   218,   417,  419 

Mohr  v.  Gault,  10  Wis.  513 3,  5 

Monk  v.  Packard,  71  Me.  309 393 

Monroe  v.  Hoffman,  29  La.  Ann.  651 343 

Monroe  Mill  Co.  v.  Menzel,  35  Wash.  487 272 

Montana  Co.  v.  Gehring,  75  Fed.  384 265 

lxx 


Table  of  Cases. 

Sec. 

Montecito  Water  Co.  v.  Santa  Barbara,  144  Cal.  578 314 

Montello,  The,  11  Wall.   (U.  S.)    411 272 

Montezuma  v.  Minor,  70  Ga.  191 345 

Montgomery  v.  Hutchinson,  13  Ala.  573 347 

Montgomery  v.  Louisville  &  N.  R.  Co.,  84  Ala.  127 343 

Montgomery  v.  Portland,  190  U.  S.  89 274,  275 

Montgomery  v.  Shaver   (Oreg.) ,  66  Pac.  923 275 

Montreal  St.  Ry.  Co.  v.  Gareau,  Rap.  Jud.  Queb.  10  B.  R.  417 85 

Montrose  Canal  Co.  v.  Loutsenheiser  Ditch  Co.,  23  Colo.  233 265 

Moody  v.  Saratoga  Springs,  17  App.  Div.  207,  45  N.  Y.  Supp.  365 289 

Moody  v.  Supervisors  of  Niagara  County,  46  Barb.  (N.  Y.)  659 350 

Moon  v.  National  Wall  Plaster  Co.,  31  Misc.  R.  (N.  Y.)   631 91,  487 

Moore  v.  Jackson,  2  Abb.  N.  C.  (N.  Y.)  215 59,  60 

Moore  v.  Langdon,  6  Mackey    ( D.  C. ) ,  6 489 

Moore  v.  Langdon,  2  Mackey  (D.  C),  127 127,  280 

Moore  v.  State,  11  Lea.    (Tenn.),  35 197 

Mootry  v.  Town  of  Danbury,  45  Conn.  550 274,  285 

Morgan  v.  Binghamton,  102  N.  Y.  500 415 

Morgan  v.  Bowes,  42  N.  Y.  St.  R.  791 108 

Morgan  v.  Danbury,  67   Conn.  484 278,  286,  329,  415,  416,  477 

Morgan  v.  Norfolk  S.  R.  Co.,  98  N.  C.  247 70 

Morris  v.  Barrisford,  9  Misc.  R.   (N.  Y.)   14 238 

Morris  v.  Graham,    16   Wash.   343 14,  428 

Morris  v.  Lowry,  113  Iowa,  544 416 

Morris  v.  McCarney,  9  Ga.   160 305 

Morris  &  Essex  Rd.  Co.  v.  Prudden,  20  N.  J.  Eq.  530 40,  43,  430,  484 

Morris  Canal  &  Bkg.  Co.  v.  Ryerson,  27  N.  J.  L.  457 456,  494 

Morrison  v.  Chic.  &  N.  W.  Ry.  Co.,  117  Iowa,  587 467 

Morrison  v.  Hickson,  87  111.  587 353,  448 

Morrison  v.  Lawrence,  98  Mass.  219 279 

Morrison  v.  Marquardt,  24  Iowa,  35 ....  i 35,  377 

Morrison  Bros.  &  Co.  v.  Coleman,  87  Ala.  655 272 

Morse  v.  Fair  Haven  East,  48  Conn.  220,  223 316,  456 

Morse  v.  Richmond,  41  Vt.  435 255 

Morton  v.  Chester,  2  Del.  Co.  R.  454 284 

Morton  v.  Mayor  of  New  York,  140  N.  Y.  207 72,  80,  356 

Moses  v.  Pittsburgh,  Ft.  W.  &  C.  R.  Co.,  21  111.  516 242 

Moses  v.  State,  58  Ind.  185 5,  6,  89,  130,  362 

Moses  v.  United  States,  16  App.  D.  C.  428 81,  83,  149 

Mosher  v.  Vincent,  39  Iowa,  607 239 

Mott  v.  Comm'rs  of  Highways  of  Rush,  2  Hill  (N.  Y.),  472 241 

Mott  v.  Shoolbread,  20  Eq.  Cases  22 493 

lxsi 


Table  of  Cases. 

Sec. 

Moudle  v.  Toledo  Plow  Co.,  6  Ohio  N.  P.  294 218 

Mowday  v.  Moore,   133   Pa.  598 46,  415,  419 

Moyamensing  v.  Long,  1  Pars.  Eq.  Cas.  143 415 

Mt.  Clemens  v.  Mt.  Clemens  Sanitarium,  127  Mich.  115 239 

Muckle  v.  Good,  45  Oreg.  230 272 

Mudd  v.  Fargo,  107  Mass.  261,  264 255 

Mueller  v.   Fruen,  36  Minn.  273 485 

Mugler  v.  Kansas,  123  U.  S.  623 81,  82 

Mullen  v.  St.  John,  57  N.  Y.  567 238 

Mullen  v.  Strieker,  19  Ohio  St.  135 36 

Mulligan  v.  Elias,  12  Abb.  Pr.  N.  S.    (N.  Y.)    259 49,  96,  138 

Mumford  v.  Starmont   (Mich.),  69  L.  R.  A.  350 449 

Muncie  Pulp  Co.  v.  Keesling  (Ind.),  76  N.  E.  1002 491 

Muncie  Pulp  Co.  v.  Koontz,  Ind.  App.,  1904,  70  N.  E.  999 269 

Muncie  Pulp  Co.  v.  Martin,  164  Ind.  30 491 

Muncie  Pulp  Co.  v.  Martin   (Ind.,  1904) ,  55  N.  E.  875 329 

Munk  v.  Columbus  Sanitary  Works  Co.,  7  Ohio  N.  P.  542 158 

Munson  v.  People,  5  Park  Cr.  R.   (N.  Y.)    16 416 

Murphey  v.  Wilmington,  5  Del.  Ch.  221 312 

Murphy  v.   Bullock,  20  R.  I.  35 275 

Murphy   v.   Chicago,   29   111.   279 242 

Murphy  v.  Leggett,  164  N.  Y.  121,  125,  126 223,  226 

Murray  v.  Archer,  5  N.  Y.  Supp.  326 468 

Murray  v.  Omaha,  66  Neb.  279,  92  N.  W.  299 279,  349 

Murray  v.  Preston,  21  Ky.  L.  Rep.  72 272 

Murtha  v.  Lovenwcll,   166  Mass.  391 79 

Musgrove  v.  Catholic  Church,  10  La.  Ann.  431 393,  436 

Muzzarelli   v.  Hulshizer,    163   Pa.   643 36 

Myers  v.  Malcolm,  6  Hill,  292 - 384 

JSapier  v.  Bulwinkle,  5  Rich.   (S.  C.)  311 36 

Nash  v.  McCracken,  33  Up.  Can.  Q.  B.  181 336 

JS'ash  v.  Newton,  30  N.  B.  610 272 

Nashville  v.  Comar,  88  Tenn.  415 24,  494 

National  Teleg.  Co.  v.  Baker,  2  Ch.  186 68,  382 

Nazworthy  v.  Sullivan,  55  111.  App.  48 238,  350,  377,  380 

Neal  v.  Gilmore   (Mich.  1905),  104  N.  W.  609 239,  379 

Neff  v.  New  York  Central  &  H.  R.  R.  Co.,  80  Hun,  394,  396 250,  460 

Neiderhouser  v.  State,  28  Ind.  258 272,  319,  326 

Neil  v.  Barron,  8  Ohio  S.  &  C.  P.  Dec.  424 279 

Neil  v.  Henry,  Meigs   (Tenn. ) ,   17 273 

Neitzy  v.  Baltimore  &  Potomac  R.  Co.,  5  Mackey   (D.  C.) ,  34 24 

lxxii 


Table  of  Cases. 

Sec. 

Nelms  v.  Clark  &  Mcrgan,  44  Ga.  617 418 

Nelson  v.  Bartlett,  89  App.  Div.   (N.  Y.)   468 192 

Nelson  v.  Fehd,   104  111.  App.  114 214,  217 

Nelson  v.  McLellan,  31  Wash.  208 383 

Nelson  v.  Milligan,  151  111.  462 40,  146 

Nelson  v.  Young,  180  N.  Y.  523 472 

Neuhs  v.  Grasselli  Chemical  Co.,  8  Ohio  Dec.  203 20,  21 

Neuhs  v.  Grasselli  Chemical  Co.,  5  Ohio  N.  P.  359 140,  165 

Nevada  Ditch  Co.  v.  Bennett,  30  Oreg.  59 265 

Neville  v.  Mitchell  (Tex.  Civ.  App.),  66  S.  W.  579 478,  496 

New  Albany  v.  Lines,  21  Ind.  App.  380 316 

New  Albany  v.  Slider,  21  Ind.  App.  392 264,  353 

New  Albany  &  L.  R.  Co.  v.  Hegman,  18  Ind.  77 69 

Newark   Aqueduct   Board  v.   Passaic,   45   N.   J.  Eq.   393,   46   N.   J.   Eq. 

552 415,  419,  437,  438,  441 

Newark  v.  Delaware,  Lack.  &  W.  P.  R.  Co.,  42  N.  J.  Eq.  196 214,  243 

New  Brighton  Board  of  Health  v.  Casey,  18  N.  Y.  St.  P.  251 406 

Newburgh.  etc.,  T.  R.  Co.  v.  Miller,  5  Johns.  Ch.    (N.  Y.)    101 117,  257 

New  Castle  v.  Raney,  130  Pa.  546 417 

New  Castle  v.  Raney,  6  Pa.  Co.  Ct.  R.  87 50,  320,  322,  407,  476 

New  Jersey  R.  &  T.  Co.  v.  Jersey  City,  29  N.  J.  L.  170 332,  339 

New  Orleans  v.  New  Orleans  Jockey  Club  (La.  1905),  40  So.  331 439 

New  Orleans  v.  U.  S.  10  Pet.  (U.  S.)  662 59 

New  Orleans  City  &  L.  R.  Co.  v.  New  Orleans,  44  La.  Ann.  728 261 

New  Orleans  Gaslight  Co.  v.  Hart,  40  La.  Ann.  474 372 

New  Rochelle  Board  of  Health  v.  Valentine,  11  N.  Y.  Supp.  112 463 

New  Salem  v.  Eagle  Mill  Co.,  138  Mass.  8 50 

Newton  v.  Belger,  143  Mass.  598 332 

Newtown  v.  Lyons,  11  App.  Div.    (N.  Y.)    105 331 

New  York,  In  re.,  168  N.  Y.  134 272 

New  York  v.  Knickerbocker  Trust  Co.,  41  Misc.  R.   (N.  Y.)   17 235 

New  York,  Mayor  of,  v.  Lord,  17  Wend.  285 329 

New  York.  C.  &  H.  R.  R.  Co.  v.  Rochester,  127  N.  Y.  591 286 

New  York  Fire  Dept.  v.  Butler,  35  N.  Y.  177 343 

New  York,  N.  H.  &  H.  R.  Co.  v.  Horgan,  25  R.  I.  408 272 

New  York,  N.  H.  &  H.  R.  Co.  v.  Long,  72  Conn.  11 275,  429 

Nichols  v.  Boston,  98  Mass.  39 457 

Nichols  v.  Mcintosh,   19   Colo.   22 265 

Nicholson  v.  Detroit,  129  Mich.  246 279 

Nicholson  v.  Getchell,  96  Cal.  394 275 

Nicholson  v.  People,  29  111.  App.  57 473 

Nicoulin  v.  Lowery,  49  N.  J.  L.  391 331 

lxxiii 


Table  of  Cases. 

Sec. 

Nisbet  v.  Great  Northern  Clay  Co.  (Wash.),  83  Pac.  14 426,  445,  504 

Nixon  v.  Boling  (  Ala.  1906),  40  So.  210 363 

Nolan  v.  New  Britain,  69  Conn.  668 2,  5,  14,  278,  289,  293,  422,  430 

Nolan  v.  Traker,  49  Md.  460 192 

Nolin  v.  Town  of  Franklin,  4  Yerg.   ( Tenn. )   163 414 

Noonan  v.  Albany,  79  N.  Y.  480 448 

Norcross  v.  Thorns,  51  Me.  503,  504 1,  2,  3,  99,  107,  135,  144 

Normille  v.  City  of  Ballard,  33  Wash.  369 279 

North  Brunswich  Township  Board  v.  Lederer,  52  N.  J.  Eq.  675 116 

North  Brunswich  Twp.  Bd.  of  Health  v.  Lederer  (N.  J.  Ch.),  29  Atl.  444.  331 

North  Chicago  City  Ry.  v.  Lake  View,  105  111.  207 70,  252,  263,  334 

Northern  C.  R.  Co.  v.  Commonwealth,  90  Pa.  300 242 

iXorthern  Pac.  R.  R.  Co.  v.  Whalen,  149  U.  S.  157 4,  399,  422,  436 

438,  443,  446,  474 

Northern  Transp.  Co.  v.  Chicago,  99  U.  S.  635 70,  273 

North  Point  Consol.  I.  Co.  v.  Utah  &  S.  L.  C.  Co.,  16  Utah,  246,  52  Pac. 

168 4,  7,  50,  55,  56,  307 

Northup  v.  Simpson,  69  S.  C.  551 233 

North  Shore  St.  Ry.  Co.  v.  Payne,  192  111.  239 2,  9 

Northwood  v.  Barber  Asphalt  Pav.  Co.,  126  Mich.  284 90 

Norton  v.  New  Bedford,  166  Mass.  48  279 

Norton  v.  Valentine,  14  Vt.  239 56 

Norwood  v.  Dickey,   18  Ga.  528 324 

Nottingham  v.  Baltimore  &  P.  R.  Co.,  3  MacArthur,  517 430 

Noyes  v.   Stillman,   24   Conn.    15 324,  456 

Nunnelly  v.  Southern  Iron  Co.,  94  Tenn.  397 452 

Nutt  v.  Miles  County,  61  Iowa,   754 279 

O'Brien  v.  Central  Iron  &  Steel  Co.,  158  Ind.  218.. 218,  222,  233,  234,  425 

O'Brien  v.  St.  Paul,  18  Minn.  176 285,  485 

Occum  Company  v.  Sprague  Mfg.  Co.,  34  Conn.  529 324,  456 

Ockerhausen    v.    Tyson,    71    Conn.    31 275 

O'Donnell  v.  City  of  Syracuse,  184  N.  Y.  1 300 

Ogden  v.  Gibbons,  4  Johns.  Ch.    (N.  Y.)   150,  160 117,  257 

Ogiltree    v.    McQuaggs,    67    Ala.    580 417 

Oglesby  Coal  Co.  v.  Pasco,  79  111.   164 429,  430 

Ogston  v.  Aberdeen  District  Tramways  Co.    (1897),  A.  C.  Ill 217,  25a 

Ohio  &  Mississippi  Ry.   Co.  v.   Simon,  40  Ind.  278 4,  6,   9,  208 

Oklahoma  City  &  T.  R.  Co.  v.  Dunham    (Tex.  Civ.  App.,  1905),  88  S. 

W.  849 247 

Oldaker  v.  Hunt,  3  W.  R.  297 291 

Old  Forge  Co.  v.  Webb,  57  N.  Y.  App.  Div.  636 40,  246 

Lxxiv 


Table  of  Cases. 

Sec. 

Oldstein  v.  Foreman's  Building  Assoc,  44  La.  Ann.  492 36 

O'Leary,  Ex.  p.,  65  Miss.  80 210 

O'Linda  v.  Lothrop,  21   Pick.    (Mass.)    292 229 

Olive   v.    State,    80    Ala.    88 50,  272 

Olmstead  v.   Rich,    53   Hun,    638 392,  474 

Olmstead  v.  Rich,  6  N.  Y.  Supp.  826 43,  453 

Olbrich  v.  Gilman,  31  Wis.  495 311 

Oltenot  v.  New  York,  L.  &  W.  R.  Co.,  119  N.  Y.  603 494 

Olympia    v.    Mann,    1    Wash.    389 , 343 

Omaha  v.  Flood,  57  Neb.  124 264 

Omaha  &  Republican  Valley  R.  Co.  v.  Standen,  22  Neb.  343 460 

Omaha  Bridge  &  T.  Co.  v.  Hargadine,  5  Neb.   (Unoffic.)   418 472 

Opolousas   v.    Norman,    51    La.    Ann.    736 208,    210,  332 

O'Reilly  v.  Perkins,  22  R.  I.  364   32,  110 

Orlanda   v.    Pragg,    31    Fla.    Ill 345 

Orvis  v.  Elmira,  C.  &  N.  R.  Co.,  17  N.  Y.  App.  Div.  187 456 

Osborn  v.  Union  Ferry  Co.,  53  Barb.    (N.  Y.)    629 293 

Oshkosh  v.  Milwaukee  &  L.  W.  R.  Co.,  74  Wis.  534 243 

Ostrom   v.    San   Antonio,   94  Tex.   523    279 

Oswald   v.    Wolf,    129    111.   209 24 

Ottawa  Gaslight  &  C.  Co.  v.  Graham,  28  111.  73 489 

Ottawa  Gaslight  &   Coke   Co.  v.   Thompson,   39   111.    598 135 

Ottenot  v.  New  York,  Lackawanna  &  Western  R.  Co.,  119  N.  Y.  603 34 

Ottumwa  v.  Chinn,  75  Iowa,  405 367,  439 

Over  v.   Dehne    (lnd.  App.,   1905),  75   N.   E.   664 57,   89,  135 

Overseer  of  Highways  v.  Pelton,  129  Mich.  31 472 

Overton  v.   Sawyer,  46  N.  C.   308 206 

Overton  v.  Sawyer  1  Jones  L.    ( S.  C. )  i  308 375 

Owen  v.   Henman,    1   Watts   &   S.    (Pa.)    548 177 

Owen  v.  Phillips,  73  lnd.  284 20,  22,  24,  26,  39,  40,  88,  89,  95,  97 

Owens    v.    Lancaster,    182    Pa.    St.    257 329 

Owing  v.  Jones,  9  Md.   117 462,  466 

Pach  v.  Geoffrey,  67  Hun   (N.  Y.),  401 187 

Packet  Co.  v.  Sorrels,   50  Ark.  466 429,  432 

Paddock  v.  Somers,  102  Mo.  226 9,  39,  49,  306,  460 

Page  v.  Mille  Lacs  Lumber  Co.,  53   Minn.  492 14,   422,  433 

Paine  Lumber  Co.  v.  United  States,  55  Fed.  854,  866 65 

Palmer  v.  Paul,  2  L.  J.  O.  S.   154 36 

Palmer  v.  Portsmouth,  43  N.  H.  265 264 

Paragon  Paper  Co.  v.  State,  19  lnd.  App.  314 4,  450 

Park  v.  White   (Ch.),  23  Ont.  Rep.  611 462 

Ixxv 


Table  or  Cases. 

Sec. 

Parke   v.    Kilham,    8    Cal.    77 312 

Parker  v.  Foote,  19  Wend.    (N.  Y.)    309 36 

Parker    v.    Griswold,     17    Conn.    288 39 

Parker   v.   Macon,   39   Ga.   725 357 

Parker    v.    Union    Woolen    Co.,    42    Conn.    399 46 

Parker  v.  West  Coast  Packing  Co.,   17   Oreg.  510 275 

Parker  v.  Winnipiseogie  Lake  Cotton  &  Woolen  Mfg.  Co.,  Fed.  Cas.  No. 

10,752 415 

Parkhurst   v.    Swift,    31    Ind.    App.    521 472 

Parmenter  v.  Marion,  113  Iowa,  297 233,  264 

Parrish    v.    Stephens,    1    Oreg.    73 422,  430 

Parrot  v.  Cincinnati,  3  Ohio  St.  330 242 

Parrot  v.  Cincinnati  H.  &  D.  R.  Co.,  10  Ohio  St.  624 70,  242 

Parsons   v.    Hunt    (Tex.    Civ.   App.,    1904),    81    S.    W.    120 .  .  218 

Pasadena  v.   Stimson,  91   Cal.   238 71 

Pascagoula   Boom   Co.   v.   Dickson,   77   Miss.    587 273,   422,  433 

Paterson  v.  Duluth,  21  Minn.  493 71 

Paterson    v.    Johnson,    214    111.    481 343 

Patrick  v.  City  of  Omaha   (Neb.) ,  95  N.  W.  477 84 

Patton   v.    McCants,    29    S.    C.    597 468 

Patton  v.  New  York  Elevated  R.  Co.,  3  Abb.  N.  C.    (N.  Y.)    306....  232 

Patterson  v.  Vail,  43  Iowa,  142 219,  252 

Pauer  v.   Albrecht,   72   Wis.   416 239 

Payne  v.  Kansas  &  A.  Val.  R.  Co.,  46  Fed.  546 3,     8,  9 

Payne  v.  McKinley,  54  Cal.  532 429 

Peachey  v.   Rowland,   13   C.   B.    182 472 

Peachey  v.  Rowland,  22  L.  J.  C.  P.  81 43 

Peacock  v.  Spitzelberger,  16  Ky.  Law  R.  803 107 

Pearce  v.   State,   35   Tex.   Crim.   R.    150 71 

Pearl  v.   West  End   Street  Ry.    Co.,    176   Mass.    177 472 

Pearson  v.  International  Distillery,  72   Iowa,  348 399 

Peck   v.    Bowman,   22    Wkly.    Bui.    Ill 404 

Peck  v.  Elder,  5  N.  Y.  Super.  Ct.  126. . .  .40,  41,  116,  126,  363,  443,  446,  487 

Peck  v.  Michigan  City,  149  Ind.  670 431,  496 

Peek  v.  Roe,   110  Mich.   52 37,  404 

Pekin    v.    Smelzel,    21    111.    404 339 

Pence   v.    Garrison,    93    Ind.    345 415,  416 

Penn  v.  Taylor,  24  111.  App.  292 22 

Pennington  v.  Brinsop  Hall  Coal  Co.,  46  L.  J.  Ch.  773 303 

Pennington  v.  Brinsop  Hall  Coal  Co.,  5  Ch.  Div.  769 304 

Pennoyer  v.  Allen,  56  Wis.  510 33,  89,  99,   116,   161,   162,  167 

lxxvi 


Table  of  Cases. 

Seo. 

Pennsylvania  v.  Wheeling  Bridge  Co.,  13  How.  (54  U.  S.)  518 77,272,  274 

299,  415,  422,  434,  442 

Pennsylvania  &  Ohio  Canal  Co.  v.  Graham,  63  Pa.  St.  290,  296 220 

Pennsylvania  Coal  Co.  v.  Sanderson,  113  Pa.  126... 27,  32,  100,  133,  303,  382 

Pennsylvania  R.  Co.  v.  Angel,  41  N.  J.  Eq.  316 75,  99,  249 

Pennsylvania  Railroad  Co.'s  Appeal,  115  Pa.  514 72 

Pennsylvania  S.  V.  R.  Co.  v.  Reading  Paper  Mills  Co.,  149  Pa.  St.  18.  .  222 
Penrhyn  Slate  Co.  v.  Granville  Elect.  Light  &  Power  Co.,  84  App.  Div. 

92 312 

Penrose  v.    Nixon,    140   Pa.   45 174 

Pensacola  Gas  Co.   v.  Pebley,   25   Fla.   381 120 

People  v.  Albany,  11  Wend.   (N.  Y.)   539 6,  353,  357,  366 

People  v.  Albany  &  Susquehanna   R.   Co.,   57   Barb.   204 43 

People   v.    Burtlesoon,    14    Utah,    258,    263 7,    43,  89 

People  v.  Butler,  4  Hun,  636    414 

People  v.  Condon,  102  111.  App.  449 415 

People   v.    Crounse,    51    Hun,    489 475,  487 

People  v.  Cunningham,  1  Denio   (N.  Y.),  524 50,  52,  223,  224,  225 

People  v.  Daly,  35  N.  Y.  Law  Journal  P.   1199 475 

People    v.    Davidson,    30    Cal.    379 275,  410 

People  v.  Detroit  White  Lead  Works,  82  Mich.  471,  479 54,  89,  95,  135 

140,  414,  475,  483 

People  v.   Doris,    14   App.   Div.    117 414,  475 

People  v.  Downer    ( Colo. ) ,  36  Pac.  787 

People  v.  Elk  River  Mill  &  L.  Co.,   107   Cal.  221 272,  311 

People  v.  Equity  Gaslight  Co.,   141  N.  Y.  232 438 

People  v.  Gold  Run  D.  &  M.  Co.,  66  Cal.  138,  146 4,  50,  59,  271,  277 

413,  416,  437,  474 

People    v.    Hanrahan,    75    Mich.    611 330 

People    v.    Harris,    203    111.    272... 61 

People  v.  Horton,  64  N.  Y.   10    484 

People  v.  Horton,  5  Hun    ( N.  Y. ) ,  516 483 

People  v.  Hulbert,   131  Mich.   156 304 

People  v.   Illinois  Cent.   Co.,  91   Fed.   955,  958 65 

People  v.   Jessup,   28   App.  Div.    524 273 

People  v.    Keating,    168    N.    Y.    390 78,    219,  260 

People  v.    Kelly,    76   N.    Y.   475 274 

People  v.  Kerr,  27  N.  Y.  185 70 

People  v.  Law,  34  Barb.    (N.  Y.)    494 70 

People  v.  Lee,    107   Cal.   477    1,4 

People  v.  Lewis,   86  Mich.  273 150 

People  v.  Mallory,  4  Thomp.   &  C.    (N.  Y. )    567 478 

lxxvii 


Table  of  Cases. 

Sec. 

People  v.  Metropolitan  Telepli.  &  Teleg.  Co.,  64  How.  Pr.  (N.  Y.)   120..  438 

People  v.  Metropolitan  Telepli.  &  Teleg.  Co.,  11  Abb.  (N.  C.)  304. .  .  .366,  416 

People  v.  Metropolitan  Telepli.  &  Teleg  Co.,  31  Hun    (N.   Y.),   596..  258 

People  v.   Mould,  37   App.   Div.    (N.   Y.)    35 65 

People  v.  Mould,  55  N.  Y.  Supp.  453 375 

People  v.  Muller,  122  N.  Y.  408 475 

People  v.  New  York,  59  How.  Prac.  (N.  Y.)  277 219,  229 

People  v.  New  York  &  S.  I.  Ferry  Co.,  68  N.  Y.  71 63 

People  v.  New  York  Gas  L.  Co.,  64  Barb.  (N.  Y.)  55 67,  69 

People  v.  Northern  Central  By.  Co.,  164  N.  Y.  289 219,  250 

People  v.  Park  &  Ocean  11.  E.  Co.,  70  Cal.  156,  161 4,  59,  60,  61,  245 

People    v.    Pelton,    36    App.    Div.    450 320 

People   v.    Piatt,    17    Johns.    (N.    Y.)    195 270 

People  v.  Rosenberg,   138   N.   Y.   410 81 

People    v.    Sands,    1    Johns.    78 383,  384 

People   v.    Sargeant,   8    Cow.    (N.    Y.)    139 395 

People   v.    Severance,    125   Mich.    556 olo 

People  v.  Silberwood,  110  Mich.   103 272 

People  v.  St.  Louis,   10  111.    (5  Gilm.)    351 437 

People  v.   Truckee  Lumber   Co.,   116   Cal.  397 4,   7,  276,   366,  437 

People  v.  Vanderbilt,  26  N.  Y.  287,  292 5,  59,  62,  66,  306 

Peopie  v.  Willis,  9  App.  Div.    (N.  Y.)    214 201 

People  v.  Wing,   147   Cal.   379 437 

People  v.  Yonkers  Board  of  Health,   140  N.  Y.   1 331,  347,  376 

People's  Gas  Co.  v.  Tyner,  131  Ind.  277 409 

Peoria  &  Pekin  Union  By.  Co.  v.  Barton,  38  111.  App.  409 274,  456,  479 

Percival   v.   Yousling,    120   Iowa,   451 4,    14,  396 

Perkins   v.   Adams,    132   Mo.    131 272 

Perrine  v.  Taylor,  43  N.  J.  Eq.   128 382,  406 

"  Perry  v.  Howe  Co-operative  Creamery  Co.,  125  Iowa,  415.  .303,  329,  486,  498 

Perry  v.   New  Orleans,   M.   &   C.   B.    Co.,   55   Ala.   413 70,  242 

Perry  v.   New  York,  8   Bosw.    (N.   Y.)    504 356 

Perry   v.    Richmond,    94   Va.    538 354 

Peterson   v.    Beha,    161    Mo.    513 216,  239 

Peterson  v.  Santa  Bosa,  119  Cal.  387 28G,  297,  415,  416 

Peterson  v.  Wilmington,  130  N.  C.  76 279 

Pettibone   v.    Burton,    20    Vt.    302 485 

Pettibone   v.    Hamilton,   40    Wis.    402 422 

Pettis    v.    Johnson,    56    Ind.    139 50 

Pettit  v.  Grand  Junction,  119  Iowa,  352.  .  .  .41,  233,  234,  259,  297,  486,  490 

Pfingst  v.   Senn,   15   Ky.  L.   Pep.   325 419 

Pfleger  v.  Groth,   103   Wis.    104 393,  485 

lxxviii 


Table  of  Cases. 

Sec. 

Phelan    v.    Quinn,    130    Cal.    374 4 

Phelps    v.    Detroit,    120    Mich.    447 264 

Philadelphia  v.  Brabender,  201  Pa.  St.  574 263 

Philadelphia  v.  Brabender,   17  Pa.  Super.  Ct.  331 263 

Philadelphia  v.  Citizens'  Passenger  R.  Co.,  10  Pa.  Co.  Ct.  16 246 

Philadelphia  v.  Crump,  1  Brewst.   (Pa.)   320 61,  66 

Philadelphia  v.  Lyster,  3  Pa.  Super.  Ct.  475 331 

Philadelphia   v.    Friday,    6    Phila.     (Pa.)     275 52 

Philadelphia  v.  River  Front  R.  Co.,  173  Pa.  St.  334 246, 261,  264 

Philadelphia  &  R.  R.  Co.  v.  Smith,  64  Fed.  679 456,  458 

Philadelphia  &  Reading  R.  Co.  v.  Smith,  12  U.  S.  C.  C.  A.  384 47 

Philadelphia,  W.  &  B.  R.  Co.  v.  State,  20  Md.  157 50 

Phillips   v.   Denver,    19    Colo.    179 200,    201,  210 

Phillips  v.  Lawrence  Vitrified  Brick  &  Tile  Co.  (Kan.,  1905),  82  Pac.  787  100 

Phillips    V.    State,    66    Tenn.    151     159 

Phillips   v.    Stocket,    1    Overton    (Tenn.),   200 404 

Phinizy  v.  Augusta,   47   Ga.   260 4,   50,   307,   316,   329,  448 

Pickard  v.  Collins,  23  Barb.   (N.  Y.)   444.  .  .  .27,  37,  39,  40,  43,  403,  462,  466 

Pickett  v.  Condon,   18  Md.  433 321,  455 

Piehl  v.  Albany  R.  Co.,  30  App.  Div.    (N.  Y.)    166 89,  92 

Pierce  v.  German  Saving  &  Loan  Soc,  72  Cal.   180 475,  485 

Pierce  v.  Gilson  County,   107   Tenn.   224 285,   355,  419 

Pieri   v.    Town   of   Shieldsboro,   42    Miss.    493 346 

Pierre   v.    Ferdald,    13    Shep.    (26    Me.)    436 36 

Pierson  v.   Glean,   14  N.  J.  L.   36 456 

Pierson  v.  Speyer,  178  N.  Y.  279 265 

Pike    v.    Doyle,    19    La.    Ann.    362 490 

Pike  County  Dispensary  v.  Town  of  Brundidge,   130  Ala.   193 399 

Pilcher  v.  Hart,  1  Humph.    (Tenn.)    524 485 

Pillsbury  v.   Moore,   44  Me.   154 457 

Pinckney  v.  Ewens,  4  L.  T.   (N.  S.)   741 166 

Pine  City  v.  Munch,  42  Miim.  342 72,  73,  330 

Pinney  v.  Berry,  61  Mo.   359 24,  40,  456,  457,  494 

Pitcher  v.  Lennon  74  N.  Y.  St.  R.  817 44 

Pittsburgh  v.  Epping-Carpenter  Co.    (Pa.),  29  Pitts.  L.  J.   N.   S.   255 

365,  439 

Pittsburg  v.   Keech   Co.,  21    Pa.    Super.    Ct.    548 81,  332 

Pittsburg  v.  Nicholson,  36  Pitts.  Leg.  J.  N.  S.  185 362,  415 

Pittsburg  v.  Scott,   1   Pa.  309 39,  422,  423 

Pittsburg,  C.  &  St.  L.  Ry.  Co.  v.  Brown,  67   Ind.   145 69,  71 

Pittsburg,  C.  C.  &  St  L.  Ry.  Co.  v.  Crothersville,  159  Ind.  330 209 

Pittsburg,  Ft.  W.    C.  R.  Co.  v.  Cheevers,  44  111.  App.  118 221 

lxxix 


Table  of  Cases. 

Sec. 

Pittsburg,  Fort  Wayne  &  Chic.  Ry.  v.  Gilleland,  56  Pa.  St.  445 75 

Planters'  Oil  Mill  v.  Monroe  Water  Works  &  L.  Co.,  52  La.  Ann.  1243 . .  279 

Piatt  v.  Chicago,  B.  &  Q.  R.  Co.,  74  Iowa,  127 249,  416,  422,  430 

Piatt  v.   Waterbury,   72   Conn.    531    53,   267,    279,    289,  480 

Platte  &  D.  Ditch  Co.  v.  Anderson,  8  Colo.  131 429,  485 

Plattsmouth  Water  Co.  v.  Smith,  57  Neb.  579 312 

Plumer  v.  Harper,   3   N.   H.   88 447 

Pollock  v.  Cleveland  Ship  Building  Co.,  56  Ohio  St.  655   272 

Pollock    v.    Lester,    11    Hare,    266 145 

Polly  v.  Terre  Haute  Drawbridge  Co.,  6  McLean  (U.  S.),  637 70 

Polton  v.  New  Rochelle,  84  Hun    (N.  Y.),  281 485 

Pen   v.   Wittman,    147    Cal.    280 391 

Pond    v.    Metropolitan   Elevated   Ry.    Co.,   42    Hun,   567 36 

Ponting  v.  Noakes    (1894),  2  Q.  B.  281 453 

Pooie  v.  Falls  Road  Elec.  R.  Co.,  88  Md.  533 242 

Pope  v.   Boyle,   98  Mo.  527 471 

Pope  v.   Bridgewater  Gas  Co.,   52  W.  Va.   252 419 

Porter  v.  Dunham  &  Brown,  74  N.  C.  767 306 

Porter  v.  Witham,  5  Shep.  292 417 

Porth  v.  Manhattan  R.  Co.,  33  N.  Y.  S.  R.  709 422,  436 

Portland  v.  Meyer,  32  Ore.  368 340 

Portland  v.  Richardson,  54  Me.  46 217 

Postlethwaite  v.  Paine,  8  Ind.   105 57 

Potter  v.  Froment,  47   Cal.  163 41 

Pottstown  Gas  Co.  v.  Murphy,  39  Pa.  257 19,  157,  436,  497 

Pouder  v.  Quitman  Ginnery  (Ga.  1905),  492  S.  W.  746 113 

Pound  v.  Turck,  95  U.  S.  459 326 

Powell  v.  Bentley  &  Gernig  Fur  Co.,  34  W.  Va.  804,  807 2,  5,  8,  19,  20 

27,  32,  93,  96,  174,  182,  360,  415 
Powell  v.  Brookfield  Pressed  Brick  Co.   (Mo.  App.  1904),  78  S.  W.  646, 

648 ■ 145,  147 

Powell  v.  Macon  &  I.  S.  R.  Co.,  92  Ga.  209 114 

Powell  v.  Sims,  5  W.  Va.  1 36 

Powers  v.  Council  Bluffs,  45  Iowa,  652 24,  39,  397,  485 

Pratt  v.  Borough  of  Litchfield,  62  Conn.  112 329,  342 

Presnall  v.  Raley  (Tex.  Civ.  App.) ,  27  S.  W.  200 453 

Prico  v.  Grantz,  118  Pa.  402 20,  21,  22,  162,  163,  425 

Price  v.  Oakfield  Highland  Creamery  Co.,  87  Wis.  536 89,  150,  167,  416 

Prichard  v.  Commissioners  of  Morganton,  126  N.  C.  908 350 

Priewe  v.  Fitzsimmons  &  Connell  Co.,  117  Wis.  497 370 

Prior  v.  Swartz,  62  Conn.  132 65,  275 

Pritchard  v.  Edison  Elec.  Ilium.  Co.,  179  N.  Y.  364 156,  174,     491 

Lxxx 


Table  of  Cases. 

Sec. 

Pritchard  v.  Edison  Elec.  Ilium.  Co.,  92  N.  Y.  App.  Div.  178 383,  445 

Proprietors  of  Margate  Pier  v.  Town  of  Margate,  20  L.  T.  N.  S.  564 311 

Proprietors  of  Quincy  Canal  v.  Newcorab,  7  Mete.  276 430 

Provincial  Fisheries,  Matter  of,  26  Can.  S.  C.  444 272 

Prussak  v.  Hutton,  30  N.  Y.  App.  Div.  66 385,  474 

Pueschell  v.  Sutherland,  79  Mo.  App.  459 229 

Punier  v.  Pendleton,  75  Va.  516 126,  127 

Pumpelly  v.  Green  Bay  Co.,  80  U.  S.  166 329 

Pye  v.  Peterson,  45  Tex.  312 342 

Queen  v.  Price,  L.  R.  12,  Q.  B.  D.  247 5 

Queen  v.  Stephens,  7  B.  &  S.  710 43,  472 

Quiney  v.  O'Brien,  24  111.  App.  591 197 

Quinn  v.  Chicago.  Burlington  &  Quincy  R.  Co.,  63  Iowa,  510 33,  35,  40 

Quinn  v.  Lowell  Electric  Light  Corp.,   140  Mass.  106 398 

Quinn  v.  Middlesex  Electric  Light  Co.,  140  Mass.  109 398 

Quinn  v.  Winter,  7  N.  Y.  Supp.   755 444 

Quintin  v.  Bay  St.  Louis,  54  Miss.  483 37,  40,  83 

Quinton  v.  Burton,  61   Iowa,  471 252 

Rachmel  v.   Clark,   205   Pa.   St.   314 227 

Radcliff  v.  Mayor  of  Brooklyn,  4  N.  Y.   195 27,  32,  33,  329,  448 

Radican  v.  Buckley,   138  Ind.  582 405 

Railroad  v.  Bingham,  87  Tenn.   522 78 

Railroad  Co.  v.  Carr,  38  Ohio  St.  448,  453 2 

Railroad  v.  Richmond,  96  U.  S.  521 263 

Railroad  Co.  v.  Schurmeier,  7  Wall.   (U.  S.)    272 275 

Rainey  v.  Red  River  T.  &  S.  Ry.  Co.  (Tex.  Civ.  App.  1904),  20  S.  W.  95.  .  185 

Raleigh  v.  Hunter,  1G  ST.  C.  12 415,  416,  487 

Ralston  v.  Plowman,  I  Idaho,  595 277 

Ramsey  v.  Riddle,  1  Cranch.  399 419 

Rand  v.  Wiber,   19  111.  App.  395 332 

Randle  v.  Pacific  Railroad,  65  Mo.  325 70,  242 

Randolph  v.  Town  of  Bloomfield,  77  Iowa,  50 47 

Rapier  v.  London  Tramways  Co.   ( 1893) ,  2  Ch.  588 202 

Rarick  v.  Smith,  17  Pa.  Co.  Ct.  627 303,  314 

Raritan  v.  Port  Reading  R.  Co.,  49  N.  J.  Eq.  II 250,  415 

Ravenstein  v.  New  York,  L.  &  W.  R.  Co.,  136  N.  Y.  528 250 

Ray  v.  Lynes,  10  Ala.  63,  64 36,   103,  107 

Ray  v.   Sellers,  1  Duv.    (Ky.)    254 455.  456 

Ray  v.  Sweeney,  14  Bush.   1 36 

Ray  v.  Tenney  (Neb.) ,  97  N.  W.  591 425 

Ixxxi 


Table  of  Cases. 

Sec. 

Raymond  v.  Fish,  51  Conn.  SO 331 

Raymond  v.  Lowell,  6  Cush.   (Mass.)   524 357 

Rea  v.  Hampton,  101  N.  C.  51 380 

Heaves  v.   Territory,    13   Okla.    396 366, 409,  487 

Redd  v.  Edna  Cotton  Mills,  136  N.  C.  342 180,  417,  487 

Redway  v.  Moore,  2  Idaho  1036 422,  436 

Reed  v.  Birmingham,  92  Ala.  339 52 

Reed  v.  Seely,  13  Pa.  Co.  Ct.  529 350 

Reese  v.  Wright,  98  Md.  272 415 

Reeves  v.  Backus-Brooks  Co.,  83  Minn.  339 275 

Reeves  v.  Treasurer,  8  Ohio  St.  333 329 

Reg.  v.  Bradford  Nav.  Co.,  6  B.  &  S.  631 72,  291,  306 

Reg.  v.  Foxly,   6   Mod.   213 402 

Reg.  v.  Honson,   1  Dearsley's  Crown  Cas.  24 193" 

Reg.  v.  Mead,  64  L.  J.  M.  C.  X.  S.  169 452 

Reg.  v.  Price,  12  Q.  P.  D.  247 411 

Reg.  v.  Staines  Local  Board,  60  L.  T.  261 291 

Reg.  v.  United  Kingdom  Elec.  Teleg.  Co.,  31  L.  J.  M.  C.  N.  167- 258 

Behler  v.  Western  New  York  &  Pa.  R.  R.  Co.,  28  N.  Y.  St.  R.  311 239 

Reichart  v.  Flinn,  28  Pitts  L.  J.  N.  S.  159 275 

Reichert  v.  Greers,  98  Ind.  73 126 

Reilly  v.  Erie  R.  R.  Co.,  76  N.  Y.  Supp.  166 384 

Reimer's  Appeal,  100  Pa.  St.  182 233 

Reinhardt  v.  Mentasti   (Ch.  Div.),  61  Law  T.  Rep.  N.  S.  328,  330 2,  34 

Reinhardt  v.  Mentasti,  42  Ch.  D.  685 394 

Reinhart  v.  Sutton,  58  Kan.  726 316 

Remsberg  v.  Iola  Portland  Cement  Co.   (Kan.  1906),  84  Pac.  548 384 

Rendering  Co.  v.  Behr,  77  Me.  91 198 

Rennyson's  Appeal,  94  Pa.  St.   147 36 

-  Renwick  v.  Morris,  7  Hill  (N.  Y.),  575 74,  379,  413 

Respublica  v.  Caldwell,  1  Dall.   (U.  S.)    150 483 

Respublica  v.  Duquet,  2  Yeates   (Pa. ) ,  493 341 

Revell  v.  The  People  of  State  of  Illinois,  177  111.  468,  482 60,  63,  66 

Reyburn  v.  Sawyer,  135  N.  C.  328 273,  276,  415,  422,  425,  430 

Reynolds  v.  Clarke,  2  Ld.  Raym.  1399 17 

Reynolds  v.  Presidio  &  F.  R.  Co.   (Cal.  1905),  81  Pac.  1118 246 

Reynolds  v.  Urban  District  Council   ( 1896),  1  Q.  B.  604 372 

Rex  v.  Bell,  1  L.  J.   (O.  S.)   R.  B.  42 328 

Rex  v.  Carlile,  6  Car.  &  P.  636 227 

Rex  v.  Cooper,  2  Strange  1246 402 

Rex  v.  Cross,  2  Car.  &  P.  483 97,  128 

Rex  v.  Davey,  5  Esp.  217 414 

lxxxii 


Table  of  Cases. 

Sec. 

Rex  v.  Lloyd,  4  Esp.   200 413 

Rex  v.  Moore,  3  B.  &  Ad.  184 43 

Rex  v.  Neil,  2  C.  &  P.  485 5,  38,  138,  414,  478 

Rex  v.  Orchard,  3  Cox's  Cr.  C.  248 414 

Rex  v.  Pease,  4  B.  &  Ad.  30 68 

Rex  v.  Russell,  6  B.  &  C.  56G,  1  D.  &  R.  566 483 

Rex  v.  Russell,  6  East  427 212,  223 

Rex  v.  Smith,    1   Strange,   704 175 

Rex  v.  Vantandillo,  4  M.  &  S.  73 397 

Rex  v.  Ward,  4  A.  &  E.  384,  6  N.  &  M.  38,  5  L.  J.  K.  B.  221 483 

Rex  v.  Watts,  M.  &  M.  281,  22  E.  C.  L.  521 57 

Rex  v.  White,  1  Burr.  333,  337 2,  19,  414 

Rex.     See  King. 

Rhea  v.  Forsyth,  37  Pa.  503 417 

Rhea  v.  Newport  News  &  M.  V.  R.  Co.,  50  Fed.  16 274 

Rhoades  v.  Cook,  122  Iowa,  336 158 

Rhodes  v.  Cleveland,  10  Ohio,  160 329 

Rhodes  v.  Dunbar,  57  Pa.  274 20,  35,  39,  40,  103,  136,  415,  419 

Rhodes  v.  Whitehead,  27  Tex.  304,  312 55,  320 

Rhode  Island  v.  Massachusetts,  12  Pet.   (U.  S.)   657 299 

Rhode  Island  Motor  Co.  v.  City  of  Providence  (R.  I.),  55  Atl.  696 272 

Rhymer  v.  Fritz,  206  Pa.  230 430 

Rich  v.  Basterfield,  2  C.  &  K.  257 135,  443 

Rice  v.  Jefferson,  50  Mo.  App.  464 415 

Rice  v.  Morehouse,  150  Mass.  482 487 

Richards,  Appeal  of,  57  Pa.  105 415 

Richards  v.  Daugherty,  133  Ala.  569 319,  422,  436,  478 

Richards  v.  Waupun,  57  Wis.  45 44 

Richards  v.  Holt,  61  Iowa,  529 416; 

Richardson  v.  Boston,  19  How.  263 431 

Richi  v.  Chattanooga  Brewing  Co.,  105  Tenn.  651 422,  429 

Richmond  v.  Caruthers,  103  Va.  774,  50  S.  E.  265 198,  411 

Richmond  v.   Dudley,   129  Ind.   122 336 

Richmond  v.  Long,  17  Grat.   ( Va. )  375 354 

Richmond  v.   Smith,  101  Va.  161 215,  266 

Richmond  v.  Test,  18  Ind.  App.  428 477 

Richmond  Mfg.  Co.  v.  Atlantic  De  Laine  Co.,  10  R.  I.  106 410,  477 

Ricker  v.  Shaler,  89  App.  Div.  300 384 

Rideout  v.  Knox,  148  Mass.  368 83,  403,  404 

Ridge  v.  Midland  Ry.,  53  J.  P.  55 310 

Ridge  v.  Pennsylvania  R.  Co.,  58  N.  J.  Eq.  172 75,  249 

lxxxiii 


Table  of  Cases. 

Sec. 

Ridley  v.  Seaboard  &  Roanoke  R.  Co.,  124  N.  C.  34 485 

Ridley  v.  Seaboard  &  Roanoke  R.  Co.,  118  N.  C.  996 242,  317,  495 

Riedeman  v.  Mt.  Morris  Electric  Light  Co.,  56  App.  Div.   (N.  Y.)   23.  .  .  114 

Ripley  v.  State,  4  Ind.  264 81 

River  Ribble  Joint  Committee  v.  Croston  Urban  Dist.  Council   (1897),  1 

Q.  B.  251 485 

Riverside  Water  Co.  v.  Sargtnt,  112  Cal.  230 265 

Roach  v.  Sterling  Tron  &  Z.  Co.,  54  N.  J.  Eq.  65 487 

Roanoke  Gas  Co.  v.  Roanoke,  88  Va.  810 252 

Robb  v.  Carnegie,  145  Pa.  324 40,  99,  112 

Robb  v.  Indianapolis,  38  Ind.  49 391 

Robb  v.  La  Grange,  158  111.  21 284,  293 

Robb  v.  La  Grange,  57  111.  App.  386 290 

Roberts  v.  Clark,  18  Law  T.   (N.  S.)   49 57,  111,  145 

Roberts  v.  Dover,  72  N.  H.   147 300 

Roberts  v.  Fullerton,  117  Wis.  222 272 

Roberts  v.  Gwyrfai  Dist.  Council   ( 1899 ) ,  1  Ch.  583 312 

Roberts  v.  Harrison,  101  Ga.   773 316 

Robert  v.  Les  Cure  et  Marguilles,  etc.,  Rap.  Jud.  Quebec,  9  S.  C.  489.  .39,  393 

Roberts  v.  Matthews,   137  Ala.  523 422,  429 

Roberts  v.  Ogle,  30  111.  459 84,  '97 

Robeson  v.  Pittenger,  2  N.  J.  Eq.  47 36,  415 

Robins  v.  Dominion  Coal  Co.,  Rap.  Jud.  Queb.  16  C.  S.  195 98,  184 

Robinson,  Ex  p.,  30  Tex.  Civ.  App.  473 196 

Robinson  v.  Baltimore  &  O.  R.  Co.,  129  Fed.  753 365 

Robinson  v.  Baugh,  31  Mich.  290 85,  91,  99,  417,  484 

Robinson  v.  Brown,  182  Mass.  266 218,  239 

Robinson  v.  Clapp,  65  Conn.  365 36 

Robinson  v.  Kilvert,  58  L.  J.  Ch.  392 26,  85,  88 

Robinson  v.  Marion,  97  111.  App.  332 279 

Robinson  v.  Mills,  25  Mont.  391 230 

Robinson  v.  Smith,  53  Hun  (N.  Y.),  638 201,  207 

Robinson  v.  Sunderland  Corp.,   1  Q.  B.  751 406 

Rochester  v.  Curtis,   Clark   Ch.    336 415 

Rochester  v.  Erickson,  46  Barb.   (X.  Y.)   92 50,  55,  56 

Rochester  v.  Simpson,  10  N.  Y.  Supp.  499 305 

Rockland  v.  Farsworth,   87  Me.  473 361 

Rockland  v.  Rockland  Water  Co.,  86  Me.   55 407 

Kockwood  v.  Wilson,  11   Cush.  221 44 

Rodenhausen  v.  Craven,  141  Pa.  546 95 

Rodgers  v.  Pitt,  129  Fed.  932 265 

lxxxiv 


Table  of  Cases. 

Sec. 

Rogers  v.  Barker,  31  Barb.    (N.  Y.)   447 331 

Rogers  v.  Elliott,  146  Mass.  349 20,  179 

Rogers  v.  Newport,  62  Me.   101 264 

Rogers  v.  Philadelphia  Traction  Co.,  1S2  Pa.  473 188 

Rogers  v.  Stewart,  5  Vt.  215 474 

Rogers  v.  Week  Lumber  Co.,  93  N.  VV.  821 103 

Rollard's  Lessee  v.  Hogan,  3  How.  U.  S.  212 63 

Romer  v.  St.  Paul  City  R.  Co.,  75  Minn.  211 186 

Ronayne  v.  Loranger,  60  Mich.  373 50,  365,  368 

Roscoe    Lumber    Co.    v.    Standard    Silicia    Cement    Co.,    62    App.    Div. 

(N.   Y.)    421 •  96 

Rose  v.  Toledo,  24  Ohio  Civ.  Ct.  R.  540 279 

Roseburg  v.  Abraham,   8  Oreg.  509 422,  429 

Rosenheimer  v.  Standard  Gas  Light  Co.,  39  App.  Div.  482 416 

Rosenheimer  v.  Standard  Gaslight  Co.,  36  App.  Div.   (N.  Y.)    1 120 

Rosenthal  v.  Taylor,  B.  &  H.    R.  Co.,  79  Tex.  325 317 

Ross  v.  Butler,  19  N.  J.  Eq.  294,  298 19,  20,  24,  27,  38,  39,  41,  42,  99 

137,  138,  141,  166,  487 

Ross  v.  Clinton,  46  Iowa,  606 448 

Rosser  v.  Randolph,  7  Port   (Ala.),  238 415,  416,  422,  424,  486 

Roth  v.  Couly   (Ky.  1900) ,  55  S.  W.  881 174 

Roth  v.  District  of  Columbia,  16  App.  D.  C.  323 201 

Rounsville  v.  Kehlheim,  68  Ga.  668 204 

Rouse  v.  Chicago  &  E.  I.  R.  Co.,  42  111.  App.  421 456 

Rouse  v.  Martin,  75  Ala.  510 113 

Rowe  v.  Ehrmantraut,  92  Minn.   17 192 

Rowe  v.  Granite  Bridge  Corp.,  21  Pick.  344 365 

Rowe  v.  St.  Paul,  Minneapolis  &  Manitoba  R.  Co.,  41  Minn.  386 315 

Rowland  v.  Miller,  15  N.  Y.  Supp.  701 9,  11 

Ruckman  v.  Green,  9  Hun  (N.  Y.),  225 40,  116,  443 

Ruff  v.  Phillips,  50  Ga.  130 93,  438,  446 

Ruff  v.  Rinaldo,  55  N.  Y.  664 170 

Rund  v.  Fowler,  142  Ind.  214 340 

Rundle  v.  Delaware  Canal  Co.,  14  How.   (U.  S.)   80 272 

Rung  v.  Sheneberger,  2  Watts    ( Pa. ) ,  23 233 

Runyon  v.  Bordine,  14  N.  J.  L.  472 422,  436 

Russell  v.  State,  32  Ind.  App.  243 403 

Ryan  v.  Copes,  11  Rich  L.   (S.  C.)  217 40,  113 

Ryan  v.  Schwartz,  94  Wis.   403 422 

Rychlicki  v.  St.  Louis,  115  Mo.  662 316 

Rylands  v.  Fletcher,  Law  Rep.  3  H.  L.  330 27,  289,  382 

Lxxxv 


Table  of  Cases. 

Sec. 

Sadler  v.  City  of  New  York,  40  Misc.  R.  (N.  Y. )  78 68,  69 

Sage  v.  New  York,  154  N.  Y.  61 272 

(Saint,  see  St. 

Salem  v.  Eastern  R.  Co.,  98  Mass.  431 72 

Salem  v.  Mayne,  123  Mass.  372 341 

Salisbury  v.  Andrews,  128  Mass.  336 3G 

SaUiotte  v.  King  Bridge  Co.,  58  U.  S.  C.  C.  A.  466 372 

Salter  v.  People,  92  111.  App.  481 414 

Salter  v.  Taylor,  55  Ga.  310 408 

Saltonstall  v.  Banker,  74  Mass.  195 398 

Salvin  v.  North  Brancepeth  Coal  Co.,  44  L.  J.  Ch.  149 22,  26 

Salvin  v.  North  Brancepeth  Coal  Co.,  L.  R.  9  Ch.  705 39 

Sam  Kee,  In  re,  31  Fed.  680,  691 333 

Sammons  v.  Gloversville,  175  N.  Y.  346 80,  486,  487 

Sammons  v.  Gloversville,  81  N.  Y.  App.  Div.  332 460 

Sampson  v.  Smith,  8  Sm.  272 135 

San  Antonio  v.  Mackey's  Estate,  22  Tex.  Civ.  App.  145 24,  170,  490 

San  Antonio  v.  Strumberg,  70  Tex.  366 78 

Sanderson  v.  Pennsylvania  Coal  Co.,  86  Pa.  St.  401 277,  304 

Sanders  v.  Riedinger,  43  N.  Y.  Supp.  127 453 

Sanders-Clark  v.  Grosvenor  Mansion  Co.,  Ltd.   (1900),  2  Ch.  373 2,  34 

Sandman  v.  Baylies,  26  Misc.  R.    (N.  Y.)   692 232 

Sand  Point  v.  Doyle   ( Idaho  1905 ) ,  83  Pac.  598 439 

San  Francisco  v.  Buckman,  111   Cal.  25 25,  258 

San  Francisco  Sav.  Union  v.  Petroleum  &  Min.  Co.,  144  Cal.  134 272 

Sanitary  Reduction  Works  v.  California  Reduction  Co.,  94  Fed.  693 ....  332 

San  Jose  Ranch  Co.  v.  Brooks,  74  Cal.  463 221,  422 

Sardinia  v.  Butler,  149  N.  Y.  505 241,  264 

Satterfiled  v.  Rowan,  83  Ga.  187 270 

Savage  v.  Salem,  23  Oreg.  381 79 

Savannah  v.  Cullens,  95  Am.  Dec.  398 353 

Savannah  v.  Mulligan,  95  Ga.  323 347,  352 

Savannah,  Florida  &  W.  R.  Co.  v.  Gill,  118  Ga.  737 239,  240,  422 

Savannah,  F.  &  W.  R.  Co.  v.  Parish,  117  Ga.  893 7,  13,  14,  41,  305,  310 

329,  422,  423,  428,  436,  490 

Saven  v.  Johnson,  4  Pa.  Co.  Ct.  R.  360 124 

Saville  v.  Kilner,  2G  L.  T.  N.  S.  277 26,  38,  478 

Sawyer  v.  Corse,   17  Grat.    ( Va.)   230 354 

Sawyer  v.  Davis,  136  Mass.  239 69,  71 

Sayre  v.  Newark,  GO  N.  J.  Eq.  361 290 

Sayre  v.  Newark,  58  N.  J.  Eq.  136 286,  290,  431,  436 

Schaidt  v.  Blaul,  66  Md.  141 40,  408 

lxxxvi 


Table  of  Cases. 

Sec. 

Sehawb  v.  Beam,  86  Fed.  41 265 

Scheible  v.  Law,  65  Ind.  332 422 

Scheurich  v.  Southwest  Missouri  Light  Co.,  109  Mo.  App.  406 324,  425 

429,  436,  485 

Schleuter  v.  Billingheimer  (Ohio  C.  P.),  14  Wkly.  Law  B.  224 176 

Schlitz  Brewing  Co.  v.  Compton,  142  111.  511 494,  495 

Schneider  v.  Detroit,  72  Mich.  240 264 

Schnitzins  v.  Bailey,  48  N.  J.  Eq.  409 312 

Schoefflin  v.  Calkins,  5  Misc.  R.  (N.  Y.)   159 331 

Schoen  v.  Atlantic,  97  Ga.  697 198 

Schoen  v.  Kansas  City,  65  Mo.  App.  134 14,  422,  431 

School  District  v.  Neil,  36  Kan.  617 422,  429,  430 

Schrank  v.  Rochester  R.  Co.,  83  Hun   (N.  Y.),  20 251 

Schreiber  v.  Driving  Club,  39  N.  Y.  Supp.  348 456,  457 

Schriver  v.  Johnstown,  24  N.  Y.  Supp.  1083 305 

Schroeder  v.  Baraboo,  93  Wis.  95 310 

Schuck  v.  Main,  79  N.  Y.  St.  Rep.  399 385 

Schulte  v.  North  Pacific  Transp.  Co.,  50  Cal.  592 4 

Schultz  v.  Sweeney,  19  Nev.  359 312 

Schumacher  v.  Shawhan,  93  Mo.  App.  573 485 

Schussler  v.  Board  of  Commissioners  of  H.  County,  67  Minn.  412 325 

Scott  v.  Bay,  3  Md.  431,  446 44,  99,  121 

Scott  v.  Firth,  4  Fost.  &   F.  349 20,  22,  39 

Scott  v.  Houpt,  8  Kulp.    (Pa.)   42 .90,  182,  415,  416 

Seacord  v.  People,  22  111.  App.  279 2,  43,  99,  486 

Seacord  v.  People,  121  111.  623 89,  198,  476,  478,  479,  481,  483,  486 

Seal  v.  Merthyr  Tydfil  Urban  Dist.  Council,  77  Law  T.  R.  303 308 

Seastream  v.  New  Jersey  Exhibition  Co.,  58  Atl.  532 390 

Se'ele  v.  Deering,  79  Me.  343 279,  307 

Seidschlag  v.  Antioch,  207  111.  280 239 

Seifert  v.  Brooklyn,  101  N.  Y.   136 329 

Seafried  v.  Hays,  81  Ky.  377,  3S1 126,  365,  425 

Seller  v.  Parvis  and  Williams  Co.,  30  Fed.  164 118,  157 

Sellers  v.  Pennsylvania  R.  Co.,  10  Phila.    (Pa.)   319 127 

Sellick  v.  Hall,  47  Conn.  260,  273 142,  306,  474 

Sels  v.  Greene,  81  Fed.  555 279 

Senior  v.  Anderson,  115  Cal.  496 265 

Seymour  v.  Cummins,  119  Ind.  148 448 

Shain  Packing  Co.  v.  Burrus  (Tex.  Civ.  App.),  75  S.  W.  838 477 

Shannon  v.  Omaha   (Neb.),  100  N.  W.  298 455 

Sharp  v.   Arnold,   108  Iowa,  203 486 

Shaw  v.  Forging  Co.,  10  Ohio  Dec.  107 21 

lxxxvii 


Table  of  Cases. 

Sec. 

Shaw  v.  Queen  City  Forging  Co.,  7  Ohio  N.  P.  254 174,  175,  176,  182 

183,  188,  417,  483 

Shear  v.  Green,  73  Iowa,  688 473 

Shed  v.  Hawthorn,  3  Neb.   179 425,  429 

Sheedy  v.  Union  Press  Brick  Works,  25  Mo.  App.  527 432 

Shelf er  v.  London  Electric  Lighting  Co.  (C.  A.  1895),  1  Ch.  287 185 

Shepard  v.  People,  40  Mich.  487 3/6,  416 

Shepard  v.  Barnett,  52  Tex.  638 240 

Sheppenville  v.  Bower   (Tex.  Civ.  App.),  68  S.  W.  833 353 

Sherer  v.  Hodgson,  3  Rawle   (Pa.)    211 487 

Sherley  v.  Bernicia,  118  Cal.  344 275 

Sherlock  v.  Bainbridge,  41  Ind.  35 275 

Sherman  v.  Fall  River  Iron  Works  Co.,  2  Allen,  524 46 

Sherman  v.  Langham   (Tex.  1890),  13  S.  W.  1042 353,  355 

Shipley  v.  Fifty  Associates,  106  Mass.  194 237,  385,  471 

Shiras  v.  dinger,  50  Iowa,  571 2u0,  205 

Shirley  v.  Bishop,  67  Cal.  543 4 

Shively  v.  Bowlby,  152  U.  S.  1 272 

Sliively  v.  Cedar  Rapids,  Iowa  F.  &  X.  W.  R.  Co.,  74  Iowa,  169 24,  41 

209,211,490,  491 

Shivery  v.  Streeper,  24  Fla.  103 40,  200,  415 

Shrieve  v.  Voorhies,  3  N.  J.  Eq.  25 22 

Slnoyer  v.  Campbell,  31  Ind.  App.  83 4,  36,  394 

Shulz  v.  Albany,  59  N.  Y.  Supp.  235 415 

Sidney's   Case,   1   Sid.   168 ... ' 414 

Siegfried  v.  Hays,  81  Ky.  377 14 

Sierra  County  v.  Butler,  136  Cal.  547 414 

Sigler  v.  Cleveland,  3  Ohio  N.  P.  119 150 

Silvers  v.  Traverse,  82  Iowa,  51 399,  416 

"  Simis  v.  Brookfield,  13  Misc.  R.   (N.  Y.)   569 52 

Simmons  v.  Everson,  124  N.  Y.  319 474 

Simmons  v.  Patterson,  60  N.  J.  Eq.  385 265,  268,  272 

Simmons  v.  Patterson,  58  N.  J.  Eq.  1 289,  290,  382,  448 

Simpson  v.  Justice,  43  N.  C.  115 415,  417 

Simpson  v.  Moorehead,  65  N.  J.  Eq.  623 272 

Simpson  v.  Savage,  37  Eng.  L.  &  Eq.  374 443 

Simpson  v.  Seavey,  8  Me.  138 57,  318,  486 

Simpson  v.  Smith,  8  Sim.  272 13 

Simpson  v.  Stillwater  Co.,  62  Minn.  444 316,  476 

Simpson  v.  Whatcom,   33  Wash.  392 270 

Sing  Lee,  Ex  parte,  96  Cal.  54 33a 

Siskiyou  Lumber  &  Mer.  Co.  v.  Rostel,  121  Cal.  511 4,  430,  432. 

Lxxxviii 


Table  of  Cases. 

Sec. 

Skinner  v.  S*ate  (Tex.  Civ.  App.) ,  65  S.  W.  1073 486 

Slight  v.  Cutzlaff,  35  Wis.  675 456,  460 

Sloggy  v.  Dilworth,  38  Minn.  179 142,  456,  459,  474 

Small  v.  Danville,  51  Me.  359 279 

Small  v.  Harrington,  10  Idaho,  499,  79  Pac.  461 275,  422,  433,  487 

Smith  v.  Atlanta,  75   Ga.   110 80 

Smith  v.  Auburn,  88  App.  Div.   (N.  Y.)    396 316,  479,  485 

Smith  v.  Baker,  3  Pa.  Dist.  626 331 

Smith  v.  Commonwealth,  6  B.  Mon.  21 391 

Smith  v.  Corbit,   116   Cal.  587 265 

Smith  v.  Cummings,  2  Pars.  Eq.  Cas.  92 85,  116,  128,  158,  417,  422,  430 

Smith  v.  Elliott,  9  Pa.  St.  345 460 

Smith  v.   Fitzgerald,  24  Ind.  316 4,  110,  302,  382 

Smith  v.  Fletcher,  20  W.  R.  987 382 

Smith  v.  Fonda,  64  Miss.  551 272 

Smith  v.  Glenn,  129  Cal.  xviii 486 

Smith  v.  Ingersoll- Sergeant  Rock  Drill  Co.,  33  N.  Y.  Supp.  70 3!) 

Smith  v.  Ingersoll-Sergeant  Rock  Drill  Co.,  7  Misc.   (N.  Y.)   374 188,  487 

Smith  v.  Irish,  37  App.  Div.   (N.  Y.)   220 238 

Smith  v.  Lockwood,  13  Barb.   (N.  Y.)   209 422,  430 

Smith  v.  Maryland,  18  How.   (U.  S.)  71 272 

Smith  v.  McConathy,  11  Mo.  517 110,  208,  303,  429 

Smith  v.  McDowell,   148  111.  51 61,  218,  2G0 

Smith  v.  Mitchell,  21   Wash.  536 422,  432 

Smith  v.  Morse,  148  Mass.  407 404,  443 

Smith  v.  Philadelphia  &.B.  R.  Co.,  57  Fed.  903 317 

Smith  v.  Phillips,  8  Phila.   (Pa.)    10 41,  483,  485 

Smith  v.  Point  Pleasant  &  Ohio  R.  R.  Co.,  23  W.  Va.  451 40,  495,  496 

Smith  v.  Putnam,  62  N.  H.  369 218 

Smith  v.  Sedalia,  152  Mo.  283 486 

Smith  v.  Smith,  2  Pick.  621 46 

Smith  v.  Sprague,  55  Me.   190 238 

Smithtown  v.  Ely,  75  App.  Div.  309 264 

Snider  Preserve  Co.  v.  Beeman,  22  Ky.  Law  Rep.  1527 45,  85 

Snow  v.  Adams,   1   Cush.    (Mass.),  443 264 

Snow  v.  Cowles,  6  Fost.  (N.  H.)  275 458 

Snow  v.  Cowles,  2  Fost.   (N.  H.)   296 456 

Snow  v.  Williams,  16  Hun  (N.  Y.),  468 58 

Snyder  v.  Cabell,  29  W.  Va.  48 41,  174,  176,  443 

Soltau  v.  De  Held,  2  Simons,  N.  S.  133 5,  20,  179,  365 

South  Carolina  R.  v.  Moore  &  Philpot,  28  Ga.  418 422,  423 

South  Carolina  Steamboat  Co.  v.  South  Carolina  R.  Co.,  30  S.  C.  539 433 

lxxxix 


Table  of  Cases. 

Sec. 
South  Carolina  Steamboat  Co.  v.  Wilmington,  C.  &  A.  B.  Co.,  46  S.  C. 

327 430,433,  475 

Southeast  v.  New  York,  96  App.  Div.  598 279 

Southern  Cotton  Oil  Co.  v.  Bull,  116  Ga.  776 247 

Southern  By.  Co.  v.  Cooke,  117  Ga.  286 24,  322,  459 

Southern  By.  Co.  v.  Ferguson,  105  Tenn.  562 272 

Southern  By.  Co.  v.  Flatt,  131  Ala.  318 317 

Southwest  Missouri  Light  Co.  v.  Scheurich,  174  Mo.  235 324 

Sparhawk  v.  Union  Pass.  B.  Co.,  54  Pa.  401 2,  20,  22,  27, 174, 177,  411 

429, 430,  446 

Spaulding  v.  Smith,  162  Mass.  543 403 

Speckman  v.  Kreig,  79  Mo.  App.  376 192 

Speir  v.  Brooklyn,  139  N.  Y.  416 353,  385 

Spicer  v.  Slade,  9  Johns.   (N.  Y.)    359 241 

Spinner  v.  State  (Tex.  Civ.  App.),  65  S.  W.  1073 486 

Spokane  Mill  Co.  v.  Post,  50  Fed.  429 14,  273,  422,  428,  433 

Spokane  Street  B.  Co.  v.  Spokane  Falls,  6  Wash.  521 246,  378 

Spooner  v.  McConnell,  1  McLean,  337 417 

Sporato  v.  New  York  City,  78  N.  Y.  Supp.  168 443 

Sprague  v.  Steer,  1  B.  I.  247 485 

Sprigg  v.  Garrett  Park,  89  Md.  406 348 

Spring  v.  Delaware,  Lackawanna  &  W.  B.  Co.,  88  Hun  (N.  Y.),  385.  .  .  .  76 

Spring  Valley  Water  Works  v.  Fifield,  136  Cal.  14 4,  304,  366,  429 

St.  Anthony  Falls  Water  Power  Co.  v.  St.  Paul's  Water  Comm'rs,  168 

U.  S.  349 272 

St.  Charles  v.  Nolle,  51  Mo.  122 330 

St.  Helen's  Chemical  Co.  v.  The  Corporation  of  St.  Helen's,  L.  B.  Exch. 

196 4>  45 

St.  Helen's  Smelting  Co.  v.  Tipping,  11  H.  L.  Cas.  642 . .  1,  2,  20,  21,  34,  38,  40 

95,96,189,  299 

St.  James  Church  v.  Arrington,  36  Ala.  546 204,  205,  417 

St.  Johns  v.  McFarlan,  33  Mich.  72 342,  419 

St.  Louis  v.  Edward,  Heitzeberg  Packing  &  P.  Co.,  141  Mo.  375 332 

St.  Louis  v.  Flynn,  128  Mo.  413 331,  455 

St.  Louis  v.  Gait,  179  Mo.  8 340 

St.  Louis  v.  Heitzeberg  Packing  &  P.  Co.,  141  Mo.  375 135,  150 

St.  Louis  v.  Howard,  119  Mo.  41 336 

St.  Louis  v.  Eussel,  116  Mo.  248 200,  201,  210,  243,  410 

St.  Louis,  Alton  &  Terre  Haute  Bd.  v.  Ellis,  58  111.  App.  110 322 

St.  Louis,  A.  &  T.  By.  Co.  v.  State,  52  Ark.  51 366 

St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Biggs,  52  Ark.  240 24,  459,  496 

St.  Louis,  I.  M.  &  S.  B.  Co.  v.  Commercial  U.  Ins.  Co.,  139  U.  S.  223 ....  450 

XC 


Table  of  Cases. 

Sec. 
St.  Louis  Safe  Dep.  &  S.  Bank  v.  Kennett  Estate   (Mo.  App.,  1903),  74 

S.    W.   474 148 

St.  Louis,  San  Francisco  &  Tex.  Ry.  Co.  v.  Shaw  (Tex.),  92  S.  W.  30. .  .  425 

St.  Paul  v.  Clark,   84  Minn.   138. .  .  . 453,  455 

St.  Paul  v.  Gilfillan,  36  Minn.  298 135,  137,  140,  150.  332 

St.  Paul  v.  Johnson,  69  Minn.  184 150 

St.  Peter  v.  Denison,  58  N.  Y.  416 74 

Stadler  v.  Grieben,  61  Wis.  500 22,  500 

Stamm  v.  Albuquerque,  10  N.  M.  491 55,  50 

Standard  Bag  &  Paper  Co.  v.  Cleveland,  25  Ohio  Cir.  Ct.  R.  380 .  .285,  454,  480 

Standard  Oil  Co.  v.  Commonwealth,  26  Ky.  L.  Rep.  985 387 

Standard  Oil  Co.  v.  Oeser,  11  App.  D.  C.  80 388 

Stanford  v.  Lyon,  37  N.  J.  Eq.  94 417 

Staple  v.  Spring,   10   Mass.   72 443,  447,  459 

Staples  v.  Dickson,  88  Me.  362 218,  258,  456,  457 

Starr  v.  Beck,  133  U.  S.  541 312 

State  v.  Adams,  81  Iowa,  593 416 

State  v.  Baldwin,  18  N.  C.  195 5 

State  v.  Ball,  59  Mo.  321 89 

State  v.  Baum,  128  N.  C.  GOO 272 

State  v.  Beal,  94  Me.  520 416 

State  v.  Beardsley,  108  Iowa,  396 83 

State  v.  Bell,  5  Port.   (Ala.)   365 486 

State  v.  Berdetta,  73  Ind.  185 414 

State  v.  Bertheol,  6  Blackf.   (Ind.)    474 400 

State  v.  Board  of  Health  of  Asbury  Park,  61  N.  J.  L.  386 210,  453 

State  v.  Board  of  Health,  16  Mo.  App.  8 69,  76,  111 

State  v.  Bowman  (Iowa) ,  82  N.  W.  493 416 

State  v.  Bradley,  10  N.  D.  157 399,  438,  446 

State  v.  Brownrigg,  87   Me.   500 487 

State  v.  Cadwallader,  36  N.  J.  L.  283 346 

State  v.  Campbell,  80  Mo.  App.  110 214,  216,  30S 

State  v.  Carpenter,  68  Wis.   165 3 

State  v.  Casey,  9  S.  D.  436 399 

State  v.  Cassiddy,  6  Phila.  82 414 

State  v.  Chapman,  1  S.  Dak.  414 399,  400 

State  v.  Charles,  16  Minn.  474 391 

State  v.  Charleston  Light  &  Water  Co.,  68  S.  C.  540 273 

State  v.  City  Council  of  Charleston,  11  Rich.  Eq.  432 415 

State  v.  Clark,  28  N.  H.  176 339 

State  v.  Clark,  62  Vt.  278 416 

State  v.  Close,  35  Iowa,  570 320 

xci 


Table  of  Cases. 

Sec. 

State  v.  Collins,  68  X.  H.  299 399,  400 

State   v.    Collins,   74    Vt.    43 365, 399,  473 

State  v.  Crawford,  28  Kan.   726 5 

State  v.  Davis,  44  Kan.  60 399 

State  v.  Davis,  80  N.  C.  351 258 

State  v.  De  Wolfe   (Neb.) ,  93  N.  W.  746 413 

State  v.  Dibble,  49  N.  C.  107 274,  371 

State  v.  Dominisse  (Iowa),  99  N.  W.  561 416 

State  v.  Donovan,  10  X.  D.  610 399,  473 

State  v.  Donovan,  10  N.  D.  203 437 

State  v.  Doon,  R.  M.  Chart.    (Ga.)    1 395 

State  v.  Dover,  46  N.  H.  452 448 

State  v.  Dundee  Water  Power  Land  Co.  (N.  J.,  1904),  58  Atl.  1094 326 

State  v.  Ejermann   (Mo.  App.,  1905),  90  S.  W.  1168 473 

State  v.  Elizabeth,  61  N.  J.  L.  411 387 

State  v.  Elk  Island  Boom  Co.,  41  W.  Va.  796 326 

State  v.  Estep,  60  Kan.  416 399,  416 

State  v.  Farrell,  34  N.  C.   ( 12  Ired.  L. )    130 474 

State  v.  Frahm,  109  Iowa,  101 473 

State  v.  Franklin  Falls  Co.,  49  X.  H.  240 50,  51 

State  v.  Frazer,  1  N.  Dak.  425 400 

State  v.  Frazier,  73  Me.  95 473 

State  v.  Freeholders  of  Bergen,  46  X.  J.  Eq.  173 14,  19 

State  v.  Gegner,  SS  Iowa,  748 401 

State   v.   Gifford,    111    Iowa,   648 416,  487 

State  v.  Glucose  Sugar  Refining  Co.,  117  Iowa,  524 477,  524 

State  v.  Godwinsville  &  P.  M.  Road  Co.,  49  X.  J.  L.  266 6 

State  v.   Goodnight,   70   Tex.   682 213,  404 

State  v.  Haines,  30  Me.  65 109 

State  v.  Haines,  17  Shep.    (Me.)    65 3,  416 

State  v.  Hannibal  &  R.  C.  G.  R.,  138  Mo.  332 257 

State  v.  Harden,   11   S.  C.  360 214 

State  v.  Harrington,  69  X.  H.  496 399,  416 

State  v.  Heidenhain,  42  La.  Ann.  483 154,  332 

State  v.  Henzler   (X.  J.),  41  Atl.  228 208,  331 

State  v.  Herring,  21  Ind.  App.   157 4 

State  v.  Holman,   104  X.  C.  861 50,  476 

State  v.  Hull,  21  Me.  S4 416 

State  v.  Hunter,  106  X.  C.  796,  799 262 

State  v.  Illinois,    1 80  U.   S.  208 419 

State  v.  Jersey  City,  55  X.  J.  Eq.   116 283,  331 

State  v.  Jordan,  72  Iowa,  377 399 

xcii 


Table  of  Cases. 

Sec. 

State  v.  Judge,  46  La.  Ann.  78,  84 445 

State  v.  Raster,  35  Iowa,  221 483 

State  v.  Kearney,  25  Neb.  262 343 

State  v.  King,  105  La.  731 174 

State  v.  King,  46  La.  Ann.  78 416 

State  v.  Knoxville,  12  Lea   (80  Tenn.)    146 449 

State  v.  Laverack,  34  N.  J.  L.  201 228 

State  v.  Layman,  5  Harr.   (Del.)   510. 395 

State  v.  Lederer,  52  N.  J.  Eq.  675 50,  54 

State  v.  Leighton,  83  Me.  419 274 

State  v.  Lewis,  63  Kan.  265 473 

State  v.  Linkhaw,  69  N.  C.  214 475 

State  v.  Longfellow,  169  Mo.  109 272 

State  v.  Lord,  8  Kan.  App.  257 399,  401,  473 

State  v.  Lord,  28  Oreg.  529 437 

State  v.  Lorry,  7  Baxt.   (Tenn.)   95 414 

State  v.  Louisiana,  B.  G.  &  A.  Gravel  Koad  Co.    (Mo.  App.,   1906),  92 

S.   W.    153 438 

State  v.  Louisville  &  X.  R.  Co.,  91  Tenn.  445 242 

State  v.  Louisville,  N.  A.  &  C.  R.  Co.,  86  Ind.  114 242 

State  v.  Luce,  9  Houst.    (Del.)    396 5,  38,  80,  118,  106 

State  v.  Maimer,  43   La.  Ann.  496 336 

State  v.  Marshall,  50  La.  Ann.   1176 333 

State  v.  Martin,  08  Vt.  93 363,  3G7 

State  v.  Massey,   72  Vt.  210 416,  473 

State  v.  McDonald,  148  111.  51 60 

State  v.  McGahan,  48  W.  Va.  438 487 

State  v.  McGill,  65  Vt,  547 487 

State  v.  McGruer,  9  N.  Dak.  566 399 

State  v.  McMaster   (N.  Dak.),  99  N.  W.  58 366,  416 

State  v.   Meek,   112  Iowa,  338 83 

State  v.  Meiritt,  35  Conn.  314 214 

State  v.  Mobile,  24  Ala.  701 448 

State  v.  Mobile,  5  Port.   (Ala.)   279 3,  6,  214,  228,  262,  415,  416,  417 

State  v.  Moffett,  1  G.  Green,  247,  249 376,  379 

State  v.  Monongahela  R.  R.  Co.,  37  W.  Va.  108 243 

State  v.  Moore,  31  Conn.  479 389 

State  v.  Moore,  49   S.  C.  438 399,  473 

State  v.  Morehead,  22  R.  I.  272 48? 

State  v.  Morris,  47  La.  Ann.  1660 345 

State  v.  Morris  Canal  &  Banking  Co.,  22  N.  J.  L.  537 214 

State  v.  Mott,  61  Md.  297 339 

xcili 


Table  of  Cases. 

Sec. 

State  v.  Mullikin,  8  Blackf.   (Ind.)  260 400 

State  v.  Narrows  Island  Club,  100  N.  C.  477 273 

State  v.  Neidt  (N.  J.),  19  Atl.  318 171 

State  v.  Nelson   (N.  Dak.),  99  N.  W.  1077 399,  400 

State  v.  Newark,  34  N.  J.  L.  2G4 346,  348 

State  v.  Newark  Board  of  Health,  54  N.  J.  L.  325 419 

State  v.  Noyes,  30  N.  H.  279 83,  84,  416 

State  v.  O'Connell,  99  Me.  61 399,  400 

State  v.  Ohio  Oil  Co.,  150  Ind.  21 4,  5,  7,  366 

State  v.  O'Leary,  155  Ind.  526 363 

State  v.  Oleson,  26  Minn.  507 391 

State  v.  O'Neill,  40  La.  Ann.   1171 343 

State  v.  Owen,  50  La.  Ann.  1181 262 

State  v.  Paggett,  8  Wash.  579 4,  384,  416,  450 

State  v.  Parrolt,  71  N.  C.  311 70 

State  v.  Paterson   (N.  D.) ,  99  N.  W.  67 437 

State  v.  Patterson,  14  Tex.  Civ.  App.  465 395,  415 

State  v.  Paul,  5  K.  I.  185 .399,  401 

State  v.  Paysson,  47  La.  Ann.  1029 198 

State  v.  Peak,  66  Kan.  701 401 

State   v.    Phipps,    4    Ind.    515 52,  475 

State  v.  Piper,  70  N.   H.  282 399,  416 

State  v.  Plunket,  18  N.  J.  L.  5 413 

State  v.  Pomeroy,  73  Wis.  664 241 

State  v.  Portland,  74  Me.  268 18,  285,  289,  431,  448 

State  v.  Price,  92  Iowa,  181 473 

State  v.  Proctor,  90  Mo.  334 413 

State  v.  Purse,  4  McCord,  472 44 

State  v.  Rankin,  3  S.  C.  438 50,  158,  305,  320,  476 

•  State  v.  Reymann,  48  W.  Va.   307 399 

State  v.  Robinson,  28  Iowa,  514 216 

State  v.  Saunders,  66  N.  H.  39 82,  486 

State  v.  Sheriff  of  Ramsay  County,  84  Minn.  236 150 

State  v.  Smith,  82  Iowa,  423 477 

State  v.  Snover,  42  K  J.  L.  341 380 

State  v.  Snyder,  108  Iowa,  205 473 

State  v.  Society  for  Establishing  Useful  Manufactures,  42  N.  J.  Eq.  504.  230 

St:tte  v.  Stanley,  84  Me.  555 83 

State  v.  Stark,  63  Kan.  529 372 

State  v.  Strickford,  70  N.  H.-297 399,  486 

State  v.  Suttle,  115  N.  C.  784 371 

State  v.   Tabler,   34  Ind.  App.   393 399,  401,  487 

xciv 


Table  of  Cases. 

Sec. 

State  v.  Taylor,  29  Ind.  517 311 

State  v.  Toner,  185  Mo.  79 149 

State   v.   Turner,   63   Kan.   714 399,  473 

State  v.  Twiford,   136  N.   C.  603 272,  274 

State  v.  Vermont  Cent.  R.  Co.,  30  Vt.  108 450 

State  v.  Viers,  82  Iowa,  397,  48  N.  W.  732 399,  401,  473 

State  v.  Vineland,  56  N.  J.  L.  474 252,  253 

State  v.  Wabash  Paper  Co.,  21  Ind.  App.   167 272,  311 

State  v.  Wassey,  72  Vt.  210 399 

State  v.  Webber,  107  N.  C.  962 340 

State  v.  Wester,  67  Kan.  810 399 

State  v.  Western,  etc.,  R.  Co.,  95  N.  C.  602 450 

State  v.  Wetherell,  5  Har.    (Del.)    487 19,  85,  87,  166 

State  v.  Wheeling  &  B.  B.  Co.,  18  How.   (U.  S.)   421 67 

State  v.  White,  96  Mo.  App.   100 450,  452 

State  v.  White,  18  R.  I.  473 369 

State  v.  Wilkinson,  2  Vt.  480 367 

State  v.  Willis,  44  N.  C.  223 475 

State  v.  Wilson,  43  N.  H.  415 127 

State  v.  Wilson,  106  N.  C.  718 312,  362 

State  v.  Wolfe,  112  N.  C.  889 159 

State  v.  Wolfe,  61  S.  C.  25 414 

State  v.  Woodbury,  67  Vt.  602 413,  414 

State  v.  Yopp,  97  N.  C.  477 27 

State  of,  see  Name  of  State. 

Stearns  v.  St.  Cloud,  Mankato  &  Austin  R.  Co.,  36  Minn.  425 24 

Stein  v.  Hanck,  56  Ind.  65 36 

Stein  v.  Lyon,  91  App.  Div.  593 411 

Steinke  v.  Bentley,  6  Ind.  App.  663 457 

Stenett  v.  Northport  Min.  &  Sm.  Co.,  30  Wash.  St.  164 57,  152,  158 

Sterger  v.  Van  Sicklen,  132  N.  Y.  499 471 

Sterling  v.   Littlefield,    97   Me.   479 415,  417 

Stetson  v.  Faxon,  19  Pick.   (Mass.)    147 218,  233,  234,  422 

Stevens  v.  Stevens,  1 1  Mete.  251 407 

Stevenson  v.  Ebervale  Coal  Co.,  4203  Pa.  316 40,  486 

Stevenson  v.  'Ebervale  Coal  Co.,  201  Pa.  St.  112 329,  476,  477 

Stewarts  Appeal,  56  Pa.   413,  422 24,  460 

'  Steyer  v.  McCauley,  102  Iowa,  105 473 

Stiles  v.  Laird,  5  Cal.   121 366,  375 

Stilwell  v.  Buffalo  Riding  Academy,  21  Abb.  N.  C.   (N".  Y.)  *472.  .  .  .2,  40,  206 

Stiry  v.  Hammond,  4  Ohio,  376 487 


xev 


Table  of  Cases. 

Sec. 

Stockdale  v.  Rio  Grande  Western  Ry.  Co.  (Utah,  1904),  77  Pac.  849. .. .  135 

174,  247 

Stockham  v.  Browning,  18  N.  J.  Eq.  390 410 

Stockport  Waterworks  Co.  v.  Potter,  7  H.  &  N.  167 35,  89,  328 

Stockwell  v.  Town  of  Rutland,  75  Vt.  76 279 

Stone  v.  Heath,   179  Mass.   555 304 

Stone  v.  Langworthy,  20  R.  I.  602 255,  256 

Stone  v.  Miles,  39  Conn.  426 429 

Storm  v.  Barger,  45   111.  App.   173 429 

Story  v.  Hammond,  4  Ohio,  376 320,  361,  407 

Stoughton  v.   State,   5   Wis.   291 67 

Stowe  v.  Heath,  179  Mass.  385 331 

Stowell  v.  Ashley,  184  Mass.  416 279 

Strauss  v.  Barnett,   140  Pa.   Ill 184 

Strauss  v.  Louisville,  108  Ky.  155,  55  S.  W.  1075 229,  472 

Stretch  v.  Cassopolis,   125  Mich.   167 252 

Stretton's  Derby  Brewing  Co.  v.  Derby  Corporation,  63  L.  J.  Ch.  135.  .  .  .  291 

Strobel  v.  Kerr  Salt  Co.,  164  N.  Y.  303 443,  477 

Stroth  Brewing  Co.  v.  Schmitt,  25  Ohio  Cir.  Ct.  231 211,  490 

Strouse  v.  Leipf,  101  Ala.  433 192 

Strunk  v.   Pritchett,   27    Ind.   App.   582 218,  222 

Stuart  v.  Havens,  17  Neb.  211 229,  230 

Stufflebeam  v.  Montgomery,  3  Idaho,  20 218,  221,  430 

Stumno  v.  Seeley,  23  Neb.  312 321 

Sturges  v.  Bridgman,  L.  R.  11  Ch.  Div.  852 57,  184 

Suddith  v.  Incorporated  City  of  Boone,  121  Iowa,  258 310 

Sullivan  v.  Jones  &  Laughlin  Steel  Co.,  208  Pa.  St.  549,  57  Atl.  1065 133 

Sullivan  v.  McManus,  19  App.  Div.   (X.  Y.)   167,  45  N.  Y.  Supp.  1079.227,  474 

Sullivan  v.  Moreno,   19   Fla.  200,  228 59,  64,  65 

Sullivan  v.  Phillips,  110  Ind.  320 443 

Sullivan  v.  Royer,  72  Cal.  248 90,  135, 140, 147,  416 

Sullivan  v.  Spotswood,  82  Ala.  163 272 

Sullivan  v.  Waterman,  20  R.  I.  372 473 

Supervisors  of  River  Thames  v.  Port  Sanitary  A,  of  London  Port  (1894), 

1    Q.   B.    647 331 

Susquehanna,  etc.,  Turpnike  Co.  v.  People,  15  Wend.   (N.  Y.)   267 450 

Susquehanna  Fertilizer  Co.  v.  Spangler,  86  Md.  562,  572,  573 ..  .  19,  95,  96,  99 

Susquehanna  Fertilizer  Co.  v.  Malone,  73  Md.  268 49,  88,  99,  118,  158,  483 

Sutcliffe  v.  Booth,  32  L.  J.  Q.  B.  N.  S.  136 271 

Sutherland  v.  Jackson,  32  Me.  80 222 

Swaine  v.  G.  N.  By.,  4  De  G.  J.  &  S.  211 24 

Swanson  v.  Mississippi  &  R.  R.  Boom  Co.,  42  Minn.  542 430,  433 

xcvi 


Table  of  Cases. 

Sec. 

Sweeny  v.  Traverse,  82  Iowa,  720 416 

Sweet  v.  Cutts,  50  X.  H.  439 385 

Swift  v.  Broyles,  115  Ga.  885 41,  490,  491 

Swindon  Waterworks  Co.  v.  Wilts  &  Berks  Canal  Co.,  L.  R.  7  H.  L.  G97 .  304 

Swords  v.  Edgar,  59  N.  Y.  28 9,  471 

Talbott  v.  King,  32   W.  Va.   6 429,  430 

Talbot  v.  Whipple,  7  Gray    (Mass.),   122 486 

Tanner  v.  Village  of  Albion,  5  Hill   (X.  Y.) ,  121 109 

Tate  v.  Parrish,  7  T.  B.  Mon.   (Ky.)   325 360,  487 

Taylor  v.  Baltimore  &  O.  R.  Co.,  33  W.  Va.  39 69,  73 

Taylor  v.  Boulware,  35  La.  Ann.  469 37 

Taylor  v.  Commonwealth,   102  Va.   759 272 

Taylor  v.   People,  Parker's  Cr.   R.    (X.   Y.)    347 43,  54,  128,  416 

Taylor  v.  Reynolds,  92  Cal.  573 4 

Taylor,  Ex  parte,  87   Cal.   91 4,  262 

Teass  v.  St.  Albans,  38  W.  Va.  1 349 

Texas  v.  Goodnight,  70  Tex.  682 239 

Teinen  v.  Lally,  10  X.  D.  153 405 

Tennessee  Coal,  I.  &  R.  Co.  v.  Hamilton,  100  Ala.  252.  .267,  277,  329,  477,  480 

Terminal   Co.  v.  Jacobs,  109  Tenn.  727 466 

Terminal  Co.  v.  Jones,  109  Tenn.  727 462 

Terre  Haute  Drawbridge  Co.  v.  Halliday,  4  Ind.  36 274 

Terry  v.  State,  24  Ohio  Cir.  Ct.  R.  Ill 475 

Thayer  v.  Boston,  19  Pick.   (Mass.)  511 353 

Thayer  v.  Brooks,   17   Ohio,  489 40,  494 

Thebaut  v.   Canova,    11   Fla.    142 103,  137,  415,  419 

The  Idelwild,  64  Fed.  603 65 

Theilan  v.  Porter,  14  Lea.   (Tenn.)  622 352 

The  Lord  Derby,  17  Fed.  265 192 

Thelen  v.  Farmer.  36  Minn.  225 429 

Thomas  v.  Concordia  Canning  Co.,  68  Mo.  App.  350 4S5 

Thomas  v.  Harrington,  72  X.  H.  45 472 

Thomas   v.    Wade,   37    So.   743 434 

Thompson  v.  Behrmann,  37  X.  J.  Eq.  345 487 

Thompson  v.  Charity  Hospital  of  Pittsburgh,  31  Pitts.  L.  J.  X.  S.  15.  .429,  430 

Thompson  v.  Macon.   106  Mo.  App.  84 279,  44  I 

Thompson  v.  New  York  &  H.  R.  R.  Co.,  3  Sandf.  Ch.  625 434 

Thompson  v.  Patterson,  9  X.  J.  Eq.  624 419 

Thompson  v.  Pennsylvania  R.  Co.,  51  X.  J.  L.  42 250.  443 

Thomson  v.  Lee  County,  3  Wall.    (U.  S.)    327 342 

Thorndike  v.  Collins,  68  X.  H.  299 365 

xcvii 


Table  of  Cases. 

Sec. 

Thornton  v.  Grant,  10  R.  I.  477 275,  415 

Thornton  v.  Roll,  118  111.  350 419 

Thorpe  v.  Brumfit,  L.  R.  8  Ch.  App.  Cas.  650 23 

Threadgill  v.  Anson  Co.  Comm'rs,  99  N.  C.  352 354 

Threatt  v.  Brewer  Min.  Co.,  49  S.  C.  95 491 

Thurston  v.  Hancock,  12  Mass.  220 33 

Tk-henor  v.  Wilson,  8  N.  J.  Eq.  197 415 

Tiede  v.  Schmeidt,  105  Wis.  470 88,  116,  162,  310,  429,  430 

Tiede  v.  Schmeidt,  99  Wis.  201 116 

Tiffin  v.  McCormack,  34  Ohio  St.  638 385 

Tilly  v.  Mitchell  &  Lewis  Co.,  121  Wis.  1 261 

Timlin  v.  Standard  Oil  Co.,  126  N.  Y.  514 456,  457,  465 

Timlin  v.  Standard  Oil  Co.,  54  Hun   (N.  Y. ) ,  44 9,  238 

Timpson  v.  Mayor,  5  App.  Div.   (N.  Y.)   424,  430 CO 

Tinker  v.  New  York,  Ontario  &  W.  R.  Co.,  157  N.  Y.  312 7,  217 

Tipping  v.  St.  Helens  Smelting  Co.,  4  B.  &  S.  608 27,  137,  140 

Tisset  v.  Great  Southern  Telephone  &  Teleg.  Co.,  39  La.  Ann.  996 376 

Titus  v.  Northbridge,  97  Mass.  253 255 

Todd  v.  New  York  (Neb. ) ,  92  N.  W.  1040 285 

Toledo  v.  Lewis,  9  Ohio  Cir.  Dec.  451 24,  46 

Toledo  Shooting  Co.  v.  Erie  Shooting  Club,  33  C.  C.  A.  233 272 

Tomle  v.  Hampton,   129  111.  379,  3S4 3 

Tomle  v.  Hampton,  28  111.  App.   142 230 

Tompkins  v.  Harwood,  24  N.  J.  L.  425 37 

Tootle  v.   Clifton,  22  Ohio  St.   247 316 

Topeka  v.  Raynor,  61  Kan.  10 83 

Topeka  WTater  Supply  Co.  v.  Potwin  Place,  43  Kan.  404 304 

Tottenham  Urban  Dist.  Council  v.  Williamson   (C.  A.),  65  L.  J.  Q.  B.  N. 

S.  591    439 

Townes  v.  Augusta,  52  S.  C.   396 443,  457 

Town  of,  see  Name  of  Town. 

Townsend  v.  Bell,  59  N.  Y.  Supp.  203 303 

Townsend  v.  Epstein,  93  Md.   537 37,  236,  260,  261,  432 

Townsend  v.  Norfolk  Ry.  &  Light  Co.   (Va.,  1906),  52  S.  E.  970 450 

Township  Board  of  Health  v.  Henzler  (N.  J.  Ch.) ,  41  Atl.  228 210 

Tracy  v.  Le  Blanc,  89  Mo.  304 415,  417 

Train  v.  Boston  Disinfecting  Co.,  144  Mass.  523 81,  82,  83 

Transportation  Co.  v.  Chicago,  99  U.  S.  635 67 

Travis  Placer  Min.  Co.  v.  Mills,  94  Fed.  909 277 

Tremain  v.  The  Cohoes  Co.,  2  N.  Y.   163 108,  385 

Tron  v.  Lewis,  31  l'nd.  App.  17S 473 

Troy  v.  Cheshire  R.  Co.,  23  N.  H.  83 24,  39,  495 

xcviii 


Table  of  Cases. 

Sec. 

Troy  v.  Winters,  4  Thomp.  &  C.  (N.  Y. )  256 330 

Trulock  v.  Marte,  72  Iowa,  510 204,  486 

Truman  v.  London,  Brighton  &  S.  C.  Ry.  Co.,  L.  R.  25  Ch.  Div.  423 76 

Trustees  Cincinnati  Ry.  Co.  v.  Commonwealth,  3  Ky.  L.  Rep.  639 6 

Trustees,  etc.,  of  Brookhaven  v.  Smith,  98  App.  Div.  212 272,  275 

Trustees  of  First  Baptist  Church  v.  Utica  &  S.  Ry.   Co.,   6   Barb.    (N. 

Y.)    313    177,  178 

Tuchackinsky  v.  Lehigh  &  W.  Coal  Co.,  199  Pa.  515 384,  3S5 

Tuebner  v.  California  Street  Ry.  Co.,  66  Cal.  171 4,  75,  188 

Tuft  v.  Goff,  15  R.  I.  299 305 

Tunstall  v.  Christian,  80  Va.  1 36 

Tuomey  v.  O'Reilly,  3  Misc.  R.    (N.  Y.)   302 223 

Turner  v.  Lacy,  37  Or.  158 369,  374,  376 

Turner  v.  Mirfield,  34  Beav.  390 317 

Turner  v.  Mobile,   135  Ala.  73 275 

Turner  v.  Thompson,  58  Ga.  268 36 

Tuttle  v.  Church,  53  Fed.  422 US 

Tutwiler  Coal  Coke  &  Iron  Co.  v.  Nail   (Ala.,  1904),  37  So.  634 259 

Twist  v.  Rochester,   165  N.  Y.  619 279 

Twyman  v.  Board  of  Councilmen  of  Frankfort,  25  Ky.  L.  Rep.  1620 279 

Tyler  v.  Revere,   183  Mass.  98 279 

Uline  v.  New  York  C.  &  H.  R.  Co.,  101  N.  Y.  98 490 

Umscheid  v.  San  Antonio  (Tex.  Civ.  App.),  69  S.  W.  496 24,  486,  496 

Underwood  v.  Green,  42  N.  Y.   140 198 

Union  Depot  Street  Ry.  &  T.  Co.  v.  Brunswick,  31  Minn.  297 64 

Union  Mill  &  M.  Co.  v.  Danberg,  81  Fed.  73 265,  312 

Union  Mill  Co.  v.  Shores,  66  Wis.  476 273 

Union  Springs  v.  Jones,  58   Ala.  654 448,  4S5 

Union  Water  Co.  v\  Enterprise  Oil  Co.,  21  Pitts.  L.  J.  N.  S.  159 417 

United  Alkali  Co.  v.  Simpson,  63  L.  J.  M.  C.  141 273 

United  States  v.  Bellingham  Bay  Boom  Co.,  81  Fed.  658 273 

United  States  v.  Choctaw  O.  &  G.  R.  Co.,  3  Okla.  404 429 

United  States  v.  Cincinnati  &  M.  V.  R.  Co.,  67  C.  C.  A.  335 274 

United  States  v.  Debs,  64  Fed.  724,  740 3,  5,  6,  59 

United  States  v.  Douglass,  Willan  Sartoris  Co.,  3  Wyo.  287 3 

United  States  v.  North  Broomfield  Gravel  Min.  Co.,  81  Fed.  243 273 

United  States  v.  Rio  Grande  Dam  &  I.  Co.,  174  U.  S.  690 272 

United  States  v.  Royall,  Fed.  Cas.  No.  16,202 402 

United  States  Board  &  Paper  Co.  v.  Moore    (Ind.  App.,   1904),   72  N. 

E.   487     303 

United  States  Illuminating  Co.  v.  Grant,  55  Hun   (N.  Y.) ,  222 258,  372 

xcix 


Table  of  Cases. 

Sec. 

Valley  R.  Co.  v.  Franz,  43  Ohio,  623 17 

Valparaiso  v.   Bozarth,   153   Ind.   536 233, 457,  468 

Valparaiso  v.  Hagen,  153  Ind.  337 290 

Valparaiso  v.  Moffit,  12  Ind.  App.  250,  39  N.  E.  909 4,286,  448,  474 

Van  Bergen  v.  Van  Bergen,  2  Johns.  Ch.  272 321,  365,  415 

Van   Cleve  v.  Passaic  Valley  Sewerage  Comm'rs    (N.  J.,   1904),  58  Atl. 

571 308 

Vanderbilt  v.  Adams,  7  Cow.   (N.  Y.)   349,  351 345 

Vanderhurst  v.  Tholcke,  113   Cal.   147 4,  252 

Van  De  Vere  v.  Kansas  City,  107  Mo.  83 419,  443 

Van  Fossen  v.  Clark,  113  Iowa,  86 4,  170,  329,  485 

Van  Mitzen  v.  Getman,  79  Md.  405 261 

Van  Rensselaer,  113  N.  Y.  207 493 

Van  Sielen  v.  New  York  City,  64  X,  Y.  App.  Div.  437 443 

Van  Sielen  v.  New  York,  32  Misc.  R.    (N.  Y.)   403 230,  259 

Van  Veghten  v.  Howland,  12  Abb.  Pr.  N.  S.   (N.  Y.)   461 235 

Van  Veghten  v.  Hudson  River  Power  Co.,  92  N.  Y.  Supp.  956 40,  490,  494 

Van  Wagenen  v.  Cooney,  45  N.  J.  Eq.  24 430 

Vanwinkle  v.  Curtis,  3  N.  J.  Eq.  422 415 

Varney  v.  Pope,  60  Me.   192 4,  415,  417 

Vason  v.  South  Carolina  R.  R.  Co.,  42  Ga.  631 4,  70 

Vaughn  v.  Law,  1  Humph.  123 415 

Vaughan  v.  Taff  Vale  Ry.  Co.,  5  H.  &  N.  679,  685 63 

Veazie  v.  Dwinel,  50  Me.  479 3,  5,  6,  9 

Vegelahn  v.  Gunter,   167  Mass.  92 436 

Venard  v.  Cross,  S  Kan.  172 218,  220,  222,  422 

Veraguth  v.  Denver,  19  Colo.  App.  473 279 

Verden  v.   Mount,   78  Ky.   86 197 

Verder  v.   Ellsworth,  59  Vt.  354 331 

Vick  v.  Rochester,  46  Hun   (N.  Y. ) ,  607 485 

Vickers  v.  Durham,   132  N.  C.  880 284,  297,  415,  419,  420 

Viebahn   v.    Crow    Wing   County   Comm'rs    (Minn.,    1905),    101   N.    W. 

1089 218,  434 

Village  v.  Whittingham,  58  N.  J.  L.  655 293 

Village  of,  see  Name  of  Village. 

Villavosa  v.  Barthet,  39  La.  Ann.  24 340 

Violett  v.  King,  46  La.  Ann.  78 445 

Vogel  v.  Mayor,  etc.,  of  New  York,  92  N.  Y.  10 472 

Vogt  v.  Baxar  County,  16  Tex.  Civ.  App.  567 239 

Vogt  v.  Grinnell,  123  Iowa,  332 297,  329,     490 


Table  of  Cases. 

Sec. 

Wabash  v.  Southworth,  54  Minn.  79 231 

Wabash  R.  Co.  v.  Sanders,  58  111.  App.  213 317,  455,  458 

Wabash,  St.  Louis  &  Pac.  Ry.  Co.  v.  Farrer,  111  Ind.  195 256 

Wade  v.  Miller,  188  Mass.  6,  73  X.  E.  849 162,  163,  165,  411 

Wadleigh  v.  Gilman,   12  Me.  403 342,  343 

Waggaman  v.  District  of  Columbia,  16  App.  D.  C.  207 406 

Waggoner  v.  Jerinaine,  3  Denio   ( N.  Y. ) ,  306 454 

Waggoner  v.  South  Corin,  88  Mo.  App.  25 345,  346 

Wagner  v.  Portland,  40  Oreg.  389 279 

Wahle  v.  Reinback,  76  111.  322,  326 20,  33,  99,  415 

Wakeman  v.  Wilbur,  147  N.  Y.  657 22,218,219,221,422,428,  432 

Walcott  v.  Melick,  11  N.  J.  Eq.  204 103 

Waldjuller  v.  Seaside  &  Brooklyn  Elev.  R.  Co.,  40  App.  Div.   (X.  Y.)  242.  247 

Wales  v.  Stetson,  2  Mass.   143 214 

Walker  v.  Aurora,  140  111.  402 310 

Walker  v.  Brewster,  L.  R.  5  Eq.  Cas.  25 24,  43 

Walker  v.  McXelly,   121  Ga.   114 413,  437 

Walker  v.  Shepardson,  2  Wis.  384 14 

Wall  v.  Cloud,  3  Humph.   181 415 

Wall  v.  Woodbridge,  71  Ga.  256 416 

Wallace  v.  Auer,  10  Phila.   (Pa.)   356 2,  34,  176 

Wallace  v.  Farmers'  Ditch  Co.,  130  Cal.  578 327 

Wallace  v.  Kansas  City,  etc.,  R.  Co.,  47  Mo.  App.  91 222,  259,  491 

Walley  v.  Platte  &  D.  Ditch  Co.,  15  Colo.  579 316 

Walsh  v.  Hayes,  72  Conn.  397 382 

Walter  v.  County  Commissioners  of  Wicomico  Co.,  35  Md.  385 459 

Walter  v.  Selfe,  4  Eng.  L.  &  Eq.   15 145 

Walter  v.  Selfe,   15  Jur.  416 20,  38,  39 

Walter  v.  Selfe,  4  De  G.  &  S.  315 Ill,  136 

Waltman  v.  Rund,  94  Ind.  225 429 

Wanwatosa  v.  Dreutzer,  116  Wis.   117 439 

Ward  v.  Gardner.  1  Pa,  Cas.  339 501 

Ward  v.  Little  Rock,  41  Ark.  526 218,  262,  332 

Ward  v.  Washington,  Fed.  Cas.  No.   17,163 339 

Ware  v.  Regent's  Canal  Co.,  3  De  F.  &  J.  212 288 

Warren  v.  Brown,  L.  R.   ( 1902 )   1  K.  B.  14 30 

Warren  v.  Cavanagh,  33  Mo.  App.   102 332 

Warren  v.  Hunter,  1  Phila.  414 476,  485 

Warren  v.  Parkhurst,  92  X.  Y.  Supp.  725 474 

Warwick  v.  Wah  Lee  &  Co.,  10  Phila.    (Pa.)    160 90,  122 

Washburn  v.  Gilman,  64  Me.  163 318,  422 

Washburn  Mfg.  Co.  v.  Worcester,  116  Mass.  458 448 

ci 


Table  of  Cases. 

Sec. 

Washington  v.  Lynch,  Fed.  Cas.  No.  17,231,  5  Cranch  C.  C.  498 197 

Washington  Lodge  Assoc,  v.  Frelinghuysen,  11  Det.  L.  News  603 394 

Water  Co.  v.  dinger,  54  Ohio  St.  532 385 

Water  Lot  Co.  v.  Jones,  30  Ga.  944 485 

Water-Pierce  Oil  Co.  v.  Cook,  6  Tex.  Civ.  App.  573 157 

Water-Pierce  Oil  Co.  v.  New  Iberia,  47  La.  Ann.  863 332 

Waters  v.  Leech,  3  Ark.  110 329 

Watertown  v.  Cowen,  4  Paige  (N.  Y.),  510 446 

Watertown  v.  Mayor,   109  Mass.   315 330,  439 

Watson  v.  Colusa-Parrot  Mining  &  Smelting  Co.    (Mont.,  1905),  79  Pa. 

14 265,  329,  444,  454,  458,  474,  489 

Watson  v.  Fairmont  &  S.  Ry.  Co.,  49  W.  Va.  528 69 

Watson  v.  New  Milford,  72  Conn.  561 285,  313,  329,  477,  480,  482 

Watterson  v.  Saldunbehere,   101   Cal.   107 265 

Watts  v.  Norfolk  &  W.  R.  Co.,  39  W.  Va.  196 318,  326,  486,  491 

Waycross  v.  Houk,  113  Ga.  963 284,  355,  446 

Weakley  v.  Page   (Tenn.) ,  53  S.  W.  551 422,  436,  486 

Webb  v.   Demopolis,  95  Ala.    116 272,  275 

Webb  v.  Portland  Mfg.  Co.,  3  Sumn.  189 39 

Weber  v.  Harbor  Comm'rs,  18  Wall.    (U.   S.)    57 63,  272 

Weber  v.  Miller,  1  Ohio  Dec.  520 417 

Webster  v.  Harris,    111   Tenn.   668 272 

Weeks  v.  Shirley,  33   Me.  271 264 

Wees  v.  Coal  &  Iron  Co.,  54  W.  Va.  421 415,  484 

Wegner  v.  Myer,  95  111.  App.  68 456 

Weil  v.  Schultz,  33  How.  Prac.  7 380 

Weir's  Appeal,  74  Pa.  St.  230 97 

Weise  v.    Smith,   3   Oreg.   445 272 

Weiss  v.  Taylor   (Ala.,  1905),  39  So.   19 50,  424,  485 

Weiter  v.  Campbell,  60  Ga.  266 4 

Welch   v.    Stowell,   2   Dougl.    ( Mich. )    332 350,  377 

Weld  v.  Hornby,  7  East,  196 50 

Wells  v.  Brooklyn,  9  App.  Div.    (N.  Y. )    61 227 

Wells  v.  Kreyenhagen,   117   Cal.   329 265 

Welsh  v.  Plumas,  80  Cal.   338 4 

Welsh  v.  Wilson,  101  N.  Y.  254 223,  226 

Wendell  v.  Troy,  39  Barb.   (N.  Y.)    329 212,  217 

Wendlandt  v.  Cavanaugh,  85  Wis.  256 460 

Wenzlich  v.  McCotter,  87  N.  Y.   122 237,  316 

Werges  v.  St.  Louis,  C.  &  N.  O.  R.  Co.,  35  La.  Ann.  641 429 

Wesson  v.  Washburn  Iron  Co.,  13  Allen  (Mass.),  95 14,  19,27,  39,  41 

135,  143,  427,  486 

eii 


Table  of  <£a 

Sec. 
West   v.    Louisville,    Cincinnati    &   Lexington   R.    Co.,    8    Bush.     (Ky.) 

404 374,    456,  457 

West  v.  Ponca  City  Milling  Co.,  14  Okla.  646 415 

West  v.  State,  71  Ark.  144 305,  477 

West  Arlington  Imp.  Co.  v.  Mount  Hope  Retreat,  97  Md.  191 431,  477 

480,  485 

Westcott  v.  Middleton,  43  N.  J.  Eq.  478 14,  20,  134 

Western  &  Atlantic  R.  Co.  v.  City  of  Atlanta,  113  Ga.  537 346,  455 

Western  &  A.  R.  Co.  v.  Cox,  93  Ga.  561 86 

Western  Paper  Co.  v.  Cornstock  (Ind.) ,  58  N.  E.  79 303 

West  Muncie  Strawboard  Co.  v.  Slack,  164  Ind.  21 485 

West  Muncie  Strawboard  Co.  v.  Slack  (Ind.,  1904),  72  N.  E.  879.  .  .  .303,  329 

364, 474,  477 

Weston  v.  Woodcock,  5  Mees.  &  W.  587 17 

Weston  Paper  Co.  v.  Pope,  155  Ind.  394 303,  329,  477,  481,  485,  491 

West  Union  v.  Richey,  64  App.  Div.   156 264 

Wetmore  v.  Atlantic  White  Lead  Co.,  37  Barb.  (N.  Y.)   70 273 

Wetmore  v.  Tracy,  14  Wend.   (N.  Y.)   250 368,  379 

Wettengel  v.  Denver,  20  Colo.  55 263 

Whalen  v.  Baker,  44  Mo.  App.  290 444 

Whalen  v.  Keith,  35  Mo.   87 135,  143 

Whaley  v.  Laing,  2  H.  &  N.  476 307 

Whaley  v.  Wilson,  112  Ala.  627 220,  485 

Wheaton  v.  Maple  &  Co.   ( 1893) ,  3  Ch.  48 36 

Wheeler   v.   Bradford,  54   Conn.   244 213,  218 

Wheeling  Bridge  Case,  13  How.  (U.  S.)  566 77,  272,  274,  299 

415, 422, 434,  442 

Whipple  v.  Mclntyre,  69  Mo.  App.  397 208,  417 

Whitaker  v.  Hudson,   65  Ga.   43 107 

Whitcomb  v.  City  of  Springfield,  2  Ohio  C.  D.  138 180 

White  v.  Bradley,  66  Me.  254 36 

White  v.   Chapin,  102  Mass.  138 4S6 

White  v.  Forbes,  Walk.  Ch.    (Mich.)    112 417 

White  v.  Highway   Comm'rs,  95  Mich.  288 219 

White  v.  Kenney,   157   Mass.   12 210 

White  v.  Nassau  Trust  Co.,  168  N.  Y.  149 275 

Whitehurst  v.  McDonald,  52  Fed.  633 272 

Whiteneck  v.  Philadelphia  &  R.  R.  Co.,  57  Fed.  901 457 

Whitfield  v.  Longest,  28  N.   C.  268 197 

Whitmier  v.  Buffalo,  118  Fed.   773 263 

Whitraore  v.  Oronto  Pulp  &  P.  Co.,  91  Me.  297 16.  385 

Whitney  v.  Bartholomew,  21  Conn.  213 33,  35,  107,  135, 140,  144 

ciii 


Table  of  Cases. 

Sec. 

Whitney  v.  Ticonderoga,  127  N.  Y.  40 264 

Whitsen  v.  Franklin,  34  Ind.  392 263 

Whitwell,  Ex  parte,  98  Cal.  73 397 

Wichita  &  C.  R.  Co.  v.  Smith,  45  Kan.  264 243 

Wicks  v.  Thompson,  13  N.  Y.  Supp.  651 239 

Wier,  Appeal  of,  74  Pa.  230 384 

Wilbur  v.  White,  98  Me.   191 472 

Wilcken  v.  West  Brooklyn  R.  Co.,  1  X.  Y.  Supp.  791 429,  436 

Wihox  v.  Henry,  35  Wash.  591,  77  Pac.  1055 158,  208,  426,  487 

Wilcox  v.  Hines,   100  Tenn.  538 14 

Wilder  v.  Strickland,  55  N.  C.  386 484 

Wilkes  v.  Hungerford  Market,  2  Bing.  N.  C.  281 220 

Wilkesbarre  v.  Burgunder,  7  Kulp.   (Pa.)   63 212,  214,  258,  263 

Wilkinson  v.  Detroit  Spring  &  Steel  Works,  73  Mich.  405,  417 44,  238 

Wilkinson  Live  Stock  Co.  v.  Mcllquam   (Wyo.,  1905),  83  Pac.  364.. 403,  404 

Willard  v.  Borough  of  Killingworth,  8  Conn.  247 342 

Willett  v.  St.  Albans,  69  Vt.  330 448 

Willetts  v.  Chicago,  B.  &  K.  C.  R.    Co.,  88  Iowa,  281.  .274,  315,  329,  457,  486 

Williamett  Bridge  Co.  v.  Hatch,  9  Sawy.  643 272,273,274,275,  326 

Williamette  Iron  Bridge  Co.  v.  Hatch,  125  U.  S.  1 326 

Williams  v.  Beardsley  &  Carter    (Ind.) ,  591 274 

Williams  v.  Hynes,  55  N.  Y.  Super.  Ct.  86 231 

Williams  v.  Indianapolis,  26  Ind.  App.  628 279 

Williams  v.  New  York  Cent.  R.  R.  Co.,  18  Barb.   (X.  Y.)   222 69 

Williams  v.  Osborne,  40  N.  J.  Eq.  235 104 

Williams  v.  Pomeroy  Coal  Co.,  37  Ohio  St.  583 412 

Williamson  v.  Youngling,  93  Ind.  43 4,  416 

Williamsport  v.  McFadden,  15  Wkly.  Notes  Cas.   (Pa.)   269 210 

Willoughby  v.  Allen,  25  R.  I.  531 270 

Willow  River  Club  Co.  v.  Wade,   100  Wis.  86 272 

Willson  v.  Boise  City,  6  Idaho,  391 285,  306,  313 

Wilmarth  v.  Woodcock,  66  Mich.  331 485 

Wilmarth  v.  Woodcock,  58  Mich.  452 415 

Wilmington  v.  Vandegrift,  1  Mary.  (Del.)  5 258 

Wilmot  v.  Bell,  78  N.  Y.  S.  591 416 

Wilslow  v.  Bloomington,  24  111.  App.  647 157 

Wilson  v.  Great  Southern  Tel.  &  Teleg.  Co.,  41  La.  Ann.  1041 27 

Wilson  v.  New  Bedford,  108  Mass.  261 27,  382,  383 

Wilson  v.  Fhoenix  Powder  Mfg.  Co.,  40  W.  Va.  413 383,  384 

Wilson  v.  Simmons,  89  Me.  242 •  252 

Wilson  v.  West  &  Slade  Mill  Co.,  28  Wash.  312 218,  474 


CIV 


Table  of  Cases. 

Sec. 

Winchester  v.  Carroll,  99   Va.   727 279 

Windfall  Mfg.  Co.  v.  Patterson,   14S  Ind.  414 12,  16,  35,  89,  99,  102 

Windsor  v.  Delaware  &  H.  Canal  Co.,  92  Hun  (X.  Y.),  127 .'  243 

Wing  v.  Rochester,  9  N.  Y.   St.  R.  273 309,  329 

Wingfield  v.  Crunshaw,  4  Hen.  &  M.  474 415 

Winkler  v.  Carolina  &  N.  W.  R.  Co.,  126  N.  C.  370 404 

Winslow  v.  Bloomington,  24  111.  App.  647 89,  96,  481 

Winters  v.  Winters,  78  111.  App.  417 143 

Winthrop  v.  New  England  Chocolate  Co.,   180  Mass.  464 429,  438 

Wisconsin  v.  Duluth,  96  U.  S.  379 299 

Witham  v.  New  Orleans,  49  La.  Ann.  929 311 

Withington  Local  Bd.  of  Health  v.  Manchester,  2  Ch.  19 397 

Wolcott  v.  Melick,   11  N.  J.  Eq.  204 3,  99,  415,  419 

Wolfe  v.  Pearson,  114  N.  C.  621 233 

Wood  v.  High  &  Low  Harrowgate  Imp.  Co.,  22  W.  R.  763 298 

Wood  v.  Hinton,  47  W.  Va.  645 79,  279,  349 

Wood  v.  McGrath,   150  Pa.  451 310 

Wood  v.  Miller   ( Mass.,  1905 ) ,  73  N.  E.  849 162 

Wood  v.  The  Independent  School  District  of  Mitchell,  44  Iowa,  27,  30.382,  472 
Woodcliff  Land  Imp.  Co.  v.  New  Jersey  Shore  Line  Co.    (N.  J.),  60  Atl. 

44 272 

Woodcock  v.  Calais,  66  Me.  234 279 

Woodman   v.   Pittman,   79  Me.    456 272,  273 

Woodruff  v.  Gravel  Mining  Co.,  8  Sawy.   (U.  S.  C.  C.)   628 445,  474 

Woods  v.  Cottrell   (W.  Vo.),  65  L.  R.  A.  616 366 

Woodstock  Burying  Ground  Assoc,  v.  Hager,  68  Vt.  488 39.3 

Woodworth  v.  North  Bloomfield  Gravel  &  Min.  Co.,  18  Fed.  753.  .50,58,  72 

73, 77,  422 

Woodyear  v.   Schaefer,  57   Md.   1 50,  53,  126,  131,  304,  478 

Woolf  v.  Chalker,  31  Conn.  121 192,  195 

Worcester  v.  Great  Falls  Mfg.  Co.,  41  Me.  159 490 

Workington  Local  Board  v.  Cockermouth  Local  Board,  44  L.  J.  Ch.  118.  .  298 

Works  v.  Junction  R.  R..  5  McLean,  425 483 

Wormsley  v.  Church,   17  L.  T.   190 314 

Wright  v.  Chicago  &  N.  W.  Co.,  27  111.  App.  200 387 

Wright  v.  Moore,  38  Ala.  593 50,  375,  415,  416 

Wright  v.  O'Brien,  98  Me.  196 399 

Wright  v.  Syracuse,  B.  &  N.  Y.  R.  Co.,  49  Hun  (N.  Y.),  445 17 

Wyga  nt  v.  McLauchlin,  39  Ore.  429 338 

Wylie  v.  Elwood,  134  111.  281 6,  13,  14,  76,  422,  424,  436,  486 

Wynn  v.  Yonkers,  80  App.  Div.   (N.  Y. )   277 226 


CV 


Table  of  Cases. 

Sec. 

Yates  v.  Milwaukee,   10  Wall.    (U.  S.)    497 334,  342 

Yates  v.  Warrenton,  84  Va"  337 52,  65,  198,  273,  333,  342 

YTazoo  &  M.  V.  R.  Co.  v.  Sanders  (Miss.),  40  So.  163 503 

Yick  Mo.  v.  Hopkins,  118  U.  S.  373 336 

Yocum  v.  Hotel  St.  George  Co.,  18  Abb.  (N.  C.)  340 19,  27,  182,  187 

Yolo  County  v.  City  of  Sacramento,  36  Cal.  193 312,  415 

York  Telephone  Co.  v.  Keesey,  5  Pa.  Dist.  R.  366 371 

Yorkshire  County   Council  v.  Holmfirth  Urban   Sanitary  Authority,   63 

L.  J.  Q.  B.  N.  S.  485 298,  328 

Yorktown  v.  People,  66  111.  339 219 

Y'ost  v.  Philadelphia  &  R.  R.  Co.,  29  Leg.  Int.  85 429 

Young  v.  Bankier  Distillery  Co.,  69  L.  T.  838 265,  266,  267 

Young  v.  New  Haven,  39  Conn.  435 255 

Young  v.  Scheu,  56  Hun,  307 429 

Youngstown  v.  Moore,  30  Ohio  St.  133 329 

Youngstown  Twp.  Trustees  v.  Youngstown,  25  Ohio  Cir.  Ct.  R.  518 397 

Yuba  v.  Kate  Haves   Min.  Co.,  141  Cal.  360 277,  365 

Zabriskie  v.  Jersey  City  &  Bergen  R.  Co..  13  N.  J.  Eq.  314 40,  415 

Zanesville  v.   Fannan,   53  Ohio   St.   605 264,  316 

Zettel  v.  West  Bend,   79   Wis.   316 218,  221 

Ziebell  v.  Eclipse  Lumber  Co.,  33  Wash.  591 472 


CVl 


THE  LAW  OF  NUISANCES. 


CHAPTER  I. 

Definitions. 


SECTION     1.  Precise,   technical   definition   of   nuisance   impracticable. 

2.  General  definition — Nuisance. 

3.  Blackstone's   general    definition. — Nuisance. 

4.  Statutory  or   code  definitions. — Nuisance. 

5.  Public  or  common  nuisance  defined. 

6.  Hawkins'   and   Blackstone's  definitions. — Public  nuisance. 

7.  Statutory  or  code  definitions. — Public  nuisance. 

8.  Private  nuisance  defined. 

9.  Blackstone's  definition. — Private  nuisance. 

10.  Statutory  or  code  definitions. — Private  nuisance. 

11.  Nuisance  defined  with  relation  to  the  maxim  sic  utere,  etc. 

12.  Nuisance  per  se  defined. 

§  1.  Precise,  technical  definition  of  nuisance  impracticable. — ■ 
It  is  not  practicable  to  give  other  than  a  general  definition  of  what 
constitutes  a  nuisance.  A  precise,  technical  definition,  applicable 
at  all  times  to  all  cases,  cannot  be  given,  because  of  the  varying 
circumstances  upon  which  the  decisions  are  based.  To  this  there  is 
the  exception  generally  of  what  is  designated  as  a  nuisance  per  se. 
The  only  approximately  accurate  method  of  determining  the  mean- 
ing of  the  term  nuisance  is  to  examine  the  cases  adjudicating  what 
are  and  are  not  nuisances.1  It  is  said  in  a  California  case  that: 
"  It  would  tax  the  acumen  of  the  wisest  body  of  lawmakers  to  de- 
scribe with  particularity  every  act  the  doing  of  which  in  our  com- 
plicated civilization  would  constitute  a  nuisance,"  and  where  the 
legislature  declares  in  general  language  what  constitutes  a  nuis- 
ance it  should  be  determined  whether  the  act  charged  comes  within 
the  class.2     So  it  is  declared  in  an  English  case  that :  "  It  is  ex- 

1.  See   Norcross  v.   Thorns,  51   Me.  2.  People    v.    Lee,    107    Cal.    477, 

503,     504,     81     Am     Dec.     588,     per  481,  482,  40  Pac.  754,   per  Henshaw, 

curiam;     Ellev  v.     Koehler,  68  Ohio  J.,    in   argument    in    opinion    in   elec- 

St.  51,  67  N.  E.  89,  12  Am.  Neg.  Rep.  tion   law   case  as   to   impracticability 

659,  per  curiam.     See,  also,   Hoadley  of      enumerating      certain      offenses. 

v.   Seward  &  Son  Co.,  71   Conn.  640.  "The    definitions     and     rules     appli- 

646,  42  Atl.  997,  per  Andrews.  C.  J.  cable    to    cases    as    they    may    arise 


§  2  Definitions. 

treniely  difficult  to  lay  down  any  actual  definition  of  what  con- 
stitutes an  injury,  because  it  is  always  a  question  of  compound 
facts,  which,  must  be  looked  to  to  see  whether  or  not  the  mode  of 
carrying  on  a  business  did  or  did  not  occasion  so  serious  an  injury 
as  to  interfere  with  the  comfort  of  life  and  enjoyment  of  prop- 
erty."3 It  is  also  true  that  one  of  the  great  difficulties  in  defining 
a  nuisance  technically  is  to  describe  the  degree  of  annoyance  neces- 
sary to  cause  the  actionable  injury.4 

§  2.  General  definition — Nuisance.5 — A  nuisance  may  gener- 
erally  be  defined  as  anything  that  works  or  causes  injury,  damage, 
hurt,  inconvenience,  annoyance,  or  discomfort  to  one  in  the  enjoy- 
ment of  his  legitimate  and  reasonable  rights  of  person  or  prop- 
erty ;  or  that  which  is  unauthorized,  immoral,  indecent,  offensive  to 
the  senses,  noxious,  unwholesome,  unreasonable,  tortious,  or  unwar- 
ranted, and  which  injures,  endangers  or  damages  one  in  an  essen- 
tial or  material  degree  in,  or  which  materially  interferes  with,  his 
legitimate  rights  to  the  enjoyment  of  life,  health,  comfort,  or  prop- 
erty, real  or  personal.  A  nuisance  may  exist  not  only  by  reason 
of  doing  an  act,  but  also  by  omitting  to  perform  a  duty.6 

must  be  general  and  each  case  must  192  111.   239.,   245,  61   N.   E.   467,  per 

be  brought  to  the  test  of  the  princi-  Cartwright,  J. 

pies  laid  down."     Barnes  v.  Hathorn,  Any   lawful   business   conducted   in 

54  Me.  124,   128,  per  Kent,  J.  such   manner  as  to   cause   annoyance 

3.  St.  Helen's  Smelting  Co.  v.  Tip-  or  materially  interfere  with  the  ordi- 
ping,  11  H.  L.  Cas.  642,  652,  35  L.  nary  comfort  of  human  existence,  is 
J.  Q.  B.  66,  13  W.  R.  1083,  12  Law  a  nuisance.  Seacord  v.  People,  22 
T.  776,  11  Jur.  N.  S.  785,  per  Lord  111.  App.  279,  case  aff'd,  121  111.  623, 
Cranworth.  13  N.  W.  194,  10  West.  915. 

4.  See  Crawford  v.  Atglen  Axle  &  "  A  '  nuisance '  in  its  ordinary  sig- 
Iron  Mfg.  Co.,  1  Chest.  Co.  Rep.  nification,  is  anything  that  produces 
(Pa.),  412,  per  Clayton,  P.  J.  See  an  annoyance — anything  that  dis- 
§  19  herein  as  to  nuisance  being  a  turbs  or  is  offensive."  Bliss  v.  Gray- 
question  of  degree.  son,  24  Nev.   422,   454,  56   Pac.   231, 

5.  See,  also,  §   11   herein.  per  Massey,  J. 

6.  "  Anything  wrongfully  done  or  "  Whatever  is  offensive  physically, 
permitted  which  injures  or  annoys  to  the  senses,  and  by  such  offensive- 
another  in  the  enjoyment  of  his  legal  ness  makes  life  uncomfortable,  is  a 
rights."  Cooley  on  Torts,  565,  quoted  nuisance."  Westcott  v.  Middleton, 
in  North  Shore  St.  Ry.  Co.  v.  Payne,  43   N.  J.   Eq.  478,  486,    11   Atl.  490, 


Definitions. 


§3 


§   3.   Blackstone's   general   definition — Nuisance. — "  Xuisance 
nocumentum-,  or  annoyance,  signifies  anything  that  worketh  hurt, 


10   Cent.    202;    Cleveland   v.   Citizens 
Gas  Light  Co.,  24  N.  J.  Eq.  201,  10G. 

"  A  nuisance,  as  it  is  ordinarily 
understood,  is  that  which  is  offen- 
sive and  annoys  or  disturbs."  Bohan 
v.  Port  Jervis  Gas  Light  Co.,  122  N. 
Y.  18,  32,  25  N.  E.  246,  9  L.  R.  A. 
711,  33  N.  Y.  St.  R.  246,  per  Haight, 
J.,  in  dissenting  opinion. 

"  In  judgment  of  law,  whatever 
may  be  obnoxious  or  offensive  to  the 
senses,  either  of  sight,  hearing  or 
smell,  or  which  will  render  the  en- 
joyment of  life  or  property  unwhole- 
some or  uncomfortable,  is  a  nuis- 
ance." Stilwell  v.  Buffalo  Riding 
Academy,  21  Abb.  N.  C.  (N.  Y.), 
472,  473,  4  N.  Y.  Supp.  414,  per  Dan- 
iels, J.  (Building  for  keeping  horses.) 

"  Perhaps  it  would  be  too  broad  a 
proposition  to  be  held  that  anything, 
under  every  kind  of  circumstances, 
which  lessens  comfort,  or  endangers 
the  health  or  safety  of  a  neighbor,  'n 
actionable  as  a  nuisance."  Campbell 
v.  Seaman,  2  T.  &  C.  (N.  Y.),  231, 
234,  per  P.  Potter,  J. 

' '  Nuisance,  something  noxious 
or  offensive.  Anything  not  author- 
ized by  law  which  maketh  hurt,  in- 
convenience or  damage.'  "  "  '  The 
term  '  nuisance,'  derived  from  the 
French  word  '  nuire,'  to  do  hurt  or 
to  annoy,  is  applied  in  the  English 
law  indiscriminately  to  infringements 
upon  the  enjoyment  of  proprietary 
and  personal  rights.'  "  Village  of 
Cardington  v.  Fredericks,  46  Ohio  St. 
442,  446,  21  N.  E.  766,  per  Spear,  J. 
(a  case  of  obstruction  of  street), 
quoting  Cockran's  Law,  Lex.  192,  Ad- 
dison on  Torts,  361. 


"  Anything  wrongfully  done  or  per- 
mitted which  injures  or  annoys  an- 
other in  the  enjoyment  of  his  legal 
rights."  "  '  As  the  definition  as- 
sumes the  existence  of  wrong,  those 
things  which  may  be  annoying  and 
damaging,  but  for  which  no  one  is  at 
fault,  are  not  to  be  deemed  nuisances, 
though  all  the  ordinary  consequen- 
ces of  nuisances  may  flow  therein.' ;: 
Railroad  Co.  v.  Carr,  38  Ohio  St. 
448,  453,  43  Am.  Rep.  428,  quoting 
Cooley  on  Torts,  365,  366. 

"  Anything  which  unlawfully  and 
tortiously  does  hurt,  or  causes  incon- 
venience, discomfort  or  damage  to 
another."  McClung  v.  North  Bend 
C.  &  C.  Co.,  9  Ohio  Cir.  Ct.  259,  2 
Ohio  Dec.  531. 

"  Anything  that  unlawfully  hurts, 
annoys,  or  causes  inconvenience  to 
another."  Crawford  v.  Atglen  Axle 
&  Iron  Mfg.  Co.,  1  Chest.  Co.  Rep. 
(Pa.),  412,  per  Clayton,  P.  J. 

"  Injury  to  property,  with  refer- 
ence to  its  reasonable  and  ordinary 
use,  by  continuous  hurtful  acts,  con- 
stitutes a  nuisance  undoubtedly." 
Sparhawk  v.  Union  Pass.  Ry.  Co.,  54 
Pa.  401,  421,  per  Thompson,  J. 

"  'A  nuisance '  is  a  term  for  all 
practices,  avocations,  erections,  es- 
tablishments, etc.,  against  which 
courts  will  give  relief,  although  they 
are  not  intrinsically  criminal,  be- 
cause of  their  tendency  to  create  an- 
noyance, ill  health  or  inconvenience." 
Gitford  v.  Hulett,  62  Vt.  342,  346,  19 
Atl.  230,  per  Taft,  J.  (A  case  of  » 
barn.)      Citing  Abb.  Law  Diet. 

"  The  word  '  noxious  '  includes  the 
complex  idea,  both  of  insalubrity  and 


§3 


Definitions. 


inconvenience  or  damage."7    This  author  also  defines  a  nuisance  as 


offensiveness."  Rex  v.  White,  1 
Burr.  333,  337,  per  Denison,  J. 

"  The  real  question  in  all  the 
oases  is  the  question  of  fact,  viz., 
whether  the  annoyance  is  such  as  ma- 
terially to  interfere  with  the  ordi- 
nary comfort  of  human  existence." 
Crump  v.  Lambert  L.  R.,  3  Eq.  409, 
413,  per  Lord  Romilly,  M.  R.,  citing 
St.  Helen's  Smelting  Co.  v.  Tipping, 
11  H.  L.  C.  642. 

"  Anything  not  warranted  by  law, 
which  annoys  and  disturbs  one  in  the 
use  of  his  property,  rendering  its  or- 
dinary use  and  occupation  uncomfort- 
able to  him,  is  a  nuisance.  If  the  an- 
noyance is  such  as  to  materially  in- 
terfere with  the  ordinary  comfort  of 
human  existence,  it  is  a  nuisance." 
Nolan  v.  New  Britain,  69  Conn.  66S. 
678,  38  Atl.  703,  per  Andrews,  C.  J. 
(A  case  of  pollution  of  a  water- 
course.) Citing  Baltimore  R.  R.  v. 
Fifth  Bapt.  Church,  108  U.  S.  317; 
Crump  v.  Lambert,  L.  R.  3  Eq.  409, 
413,  per  Lord  Romilly. 

"  'Any  injury  to  lands  or  houses, 
which  renders  them  useless  or  even 
uncomfortable  for  habitation,  is  a 
nuisance."  I.  Hilliard  on  Torts  (4th 
ed.),  p.  584,  quoted  in  Haag  v.  Board 
of  Comm'rs  of  V.  Co.,  60  Ind.  511, 
513,  per  Niblack,  J.  (a  pest  house 
case ) . 

"  An  injury  to  lands  or  houses 
which  renders  them  useless,  or  even 
uncomfortable  for  habitation,  is  a 
nuisance."  Norcross  v.  Thorns,  51 
Me.  503,  505,  81  Am.  Dec.  588;  How- 
Mid  v.  Lee,  3  Sand.  (N.  Y.),  281,  2S3. 

"  Nuisances  to  one's  dwelling  house 
are   all   acts   done  by   another   which 


render  the  enjoyment  of  life  within 
the  house  uncomfortable,  whether  it 
be  by  infecting  the  air  with  noisome 
smells,  or  with  gases  injurious  to 
health."  Cropsey  v.  Murphy,  1  Hilt. 
(N.  Y.),  126,  127,  per  Brady,  J., 
citing  2  Greenl.  Ev.  p.  467.  Same 
definitions  in  Ellis  v.  Kansas  City 
St.  J.  &  C.  B.  R.  Co.,  63  Mo.  131, 
135,  per  Norton,  J.  (Alleged  nui- 
sance  being   animals'   carcass.) 

"  It  is  not  necessary  that  the 
smell  should  be  unwholesome;  it  is 
enough  if  it  renders  the  enjoyment  of 
life  and  property  uncomfortable." 
Rex  v.  White,  1  Burr.  333,  337,  per 
Lord  Mansfield. 

"  In  proof  of  damages  it  is  suffi- 
cient for  plaintiff  to  show  by  reason 
of  the  injurious  act  or  omission  of 
the  defendant  he  cannot  enjoy  his 
right  in  as  full  and  ample  a  manner 
as  before,  or  that  his  property  is  sub- 
stantially impaired  in  value."  Crop- 
sey v.  Murphy,  1  Hilt.  (N.  Y.),  126, 
127,  per  Brady,  J. 

"  To  make  out  a  ease  of  special 
injury  to  property  from  nuisance, 
something  materially  affecting  ita 
capacity  for  ordinary  use  and  enjoy- 
ment must  be  shown."  Sparhawk  v. 
Union  Passenger  Ry.  Co.,  54  Pa.  St. 
401. 

"  Everything  that  disturbs  in  an 
unreasonable  degree  the  quiet  enjoy- 
ment of  a  home  or  dwelling  house  is 
a  nuisance."  Wallace  v.  Auer,  10 
Phila.     (Pa.),    356,    357. 

"  That  is  a  nuisance  which  annoys 
or  disturbs  one  in  the  possession  of 
his  property,  rendering  its  ordinary 
use  or  occupation  physically  uncom- 


Definitions. 


§3 


"whatsoever  unlawfully   annoys   or   does   damage   to   another. " 


fortable  to  him."  Baltimore  &  Pot. 
R.  R.  Co.  v.  Fifth  Bapt.  Church,  108 
U.   S.  317,  329. 

"  What  makes  life  less  comfortable, 
and  causes  sensible  discomfort  and 
annoyance,  is  the  proper  subject  of 
injunction."  Fleming  v.  Hislop,  11 
App.  Cas.  686,  697,  per  Lord  Hals- 
bury;  quoted  in  Reinhardt  v.  Men- 
tasti  (Ch.  Div.),  61  Law  T.  Rep. 
N.  S.  328,  330,  40  Alb.  L.  J.  490,  per 
Keepewich,  J.  This  case  is  criticised 
in  Sanders-Clark  v.  Grosvenor  Man- 
sion Co.  L'd  (1900),  2  Ch.  373,  374, 
375,  69  L.  J.  Ch.  579,  580,  581,  82 
Law  T.  N.  S.  758,  48  Wkly.  Rep. 
570,  per  Buckley,  J.,  as  to  reasonable 
use  of  property. 

"  The  violation  of  the  duty  which 
one  owes  to  another  under  the  maxim 
sic  utere,  etc.,  is  the  best  general  de- 
scription of  a  nuisance."  Powell  v. 
Bentley  &  Gernig  Fur  Co.,  34  W.  Va. 
804,  807,  809,  12  L.  R.  A.  53,  12  S.  E. 
1085. 

7.  Barnes  v.  Hathorn,  54  Me.  124, 
126,  per  Kent,  J.,  id.  131,  per  Dicker- 
son,  J.  (a  tomb  erected  on  one's 
own  land);  3  Bl.  Coram.,  *  216; 
State  v.  Mayor  and  Aldermen  of  Mo- 
bile, 5  Port.  (Ala.),  273,  311,  30  Am. 
Dec.  564,  per  Collier,  J.  ("Anything 
that  worketh  inconvenience  "  is  a 
nuisance.  A  case  of  obstruction  of 
highway  by  market  house,  citing  1 
Russell  on  Crimes,  295).  Quoted  in 
New  York  &  N.  E.  R.  R.  Co.'s  appeal. 
58  Conn.  532,  541  (applied  to  grade 
crossings)  ;  Baldwin  v.  Ensign,  49 
Conn.  113,  117,  44  Am.  Rep.  205; 
Tomle  v.  Hampton,  129  111.  379,  384, 
21  N.  E.  800;  Norcross  v.  Thorns,  51 
Me.  503,  504,  81  Am.  Dec.  588;  Vea- 


zie  v.  Dwinel,  50  Me.  479,  481,  per 
Rice,  J.  (a  case  of  obstruction  of 
unnavigable  river  but  "  floatable 
stream");  State  v.  Haines,  17  Shep. 
(30  Me.),  65,  74,  per  Shepley,  C.  J. 
(a  case  of  indictment  for  keeping  a 
bowling  alley)  ;  Kansas  City  v.  Mc 
Aleer,  31  Mo.  App.  433,  436,  per  Elli- 
son, J.  (a  case  of  power  of  city  to 
define  and  abate  a  nuisance)  ;  Far- 
rell  v.  Cook,  16  Neb.  483,  485,  20  N. 
W.  720,  49  Am.  Rep.  721,  per  Max- 
well, J.  (a  case  of  standing  stallions 
or  jacks)  ;  Wolcott  v.  Melick,  UN. 
J.  Eq.  204,  206,  207,  66  Am.  Dec. 
790,  per  The  Chancellor  (a  case  of 
power  of  equity  to  abate)  ;  Lavvton  v. 
Steele,  119  N.  Y.  226,  235,  16  Am. 
St.  Rep.  813,  29  N.  Y.  St.  Rep.  581, 
995,  23  N.  E.  878,  7  L.  R.  A.  134  (in 
connection  with  legislative  power  to 
declare  what  are  nuisances)  ;  Meeker 
v.  Van  Rensselaer,  15  Wend.  (N.  Y.), 
397,  389,  per  Savage,  C.  J.  (citing 
Jacobs  L.  Diet.)  ;  Cooper  v.  Hull,  5 
Ohio,  321,  323,  citing  3  Petersdorff's 
Common  Law,  550  ( "  The  term  nuis- 
ance signifies  anything  that  causes 
him  inconvenience,  annoyance  or  dam- 
age"), cited  in  Columbus  Gas  Light 
&  Coke  Co.  v.  Freehand,  12  Ohio  St. 
392,  397 ;  Ellis  v.  Academy  of  Music, 
120  Pa.  608,  622,  6  Am.  St.  Rep.  739, 
15  Atl.  494,  per  Gordon,  C.  J.  (a  case 
of  right  to  use  an  alley  and  second 
action  for  continuance  of  same  nuis- 
ance) ;  Lancaster  Turnpike  Co.  v. 
Rogers,  2  Pa.  114,  115,  44  Am.  Dee. 
179,  per  Burnside,  J.  (a  case  of  a 
toll-house  and  gate)  ;  Comminge  & 
Geisler  v.  Stevenson,  76  Tex.  642, 
644,  13  S.  W.  556,  per  Acker,  P.  J. 
("'a    thing   that    worketh    hurt,    in- 


§4 


Definitions. 


"  The  common  definition  of  nuisance — ■'  anything  that  worketh 
hurt,  inconvenience  or  damage ' — is  to  be  understood  with  refer- 
ence to  the  subject-matter,  the  time,  manner,  occasion  and  degree 
of  discomforts,  and  the  mutual  adjustment  of  the  common  sacri- 
fices of  comforts  incident  to  civil  society."  9 

§  4.  Statutory  or  Code  definitions — Nuisance. — Several  codes 
or  statutes  provide  that:  "  Anything  which  is  injurious  to  health, 
or  is  indecent  or  offensive  to  the  senses,  or  an  obstruction  to  the 
free  use  of  property,  so  as  to  interfere  with  the  comfortable  enjoy- 
ment of  life  or  property,10  or  unlawfully  obstructs  the  free  pas- 


convenience  and  damage ' "'  to  one 
"  in  both  his  person  and  property,  in 
violation  of  his  right  to  enjoy  his 
property  free  from  such  hurt,  incon- 
venience and  damage");  Miller  v. 
Burch,  32  Tex.  208.,  211,  5  Am.  Rep. 
242;  Burditt  v.  Stevenson,  17  Tex. 
489,  502,  67  Am.  Dec.  665,  per 
Wheeler,  J.;  State  v.  Carpenter,  68 
Wis.  165,  173,  31  N.  W.  730,  60  Am. 
Rep.  848,  per  Orton,  J.  (a  case  of  al- 
leged obstruction  of  use  of  navig- 
able river)  ;  Mohr  v.  Gault,  10  Wis. 
513,  517,  78  Am.  Dec.  687,  per  Dixon, 
C.  J.  (a  case  of  obstruction  of  run- 
ning stream  by  washing  down  its 
banks)  ;  United  States  v.  Debs,  64 
Fed.  724,  739,  740,  per  Woods,  C.  J. 
(a  case  of  power  of  equity  to  restrain 
public  nuisance)  ;  Payne  v.  Kansas 
&  A.  Val.  R.  Co.,  46  Fed.  546,  554, 
per  Parker,  J.  (a  question  of  equity 
jurisdiction). 

8.  3  Bl.  Comm.,  *  5;  King  v. 
Davenport,  98  111.  305,  315..  38  Am. 
Rep.  89,  per  Sheldon,  J.  (a  case  of 
power  to  abate  nuisance)  ;  United 
States  v.  Douglas,  Willan  Sartoris 
Co.,  3  Wyo.  287,  294,  22  Pac.  92,  per 
Sanfley,  J.  (a  case  of  public  lands 
and  erection  of  fence). 


9.  Barnes  v.  Hathorn,  54  Me.  124, 
131.  per  Dickerson,  J.,  in  dissenting 
opinion. 

10.  California  Code  of  Civ.  Proc. 
§  731,  cited  or  quoted  in:  Phelan  v. 
Quinn,  130  Cal.  374,  379,  62  Pac.  623 
(nuisance  in  private  way)  ;  Fisher  v. 
Zumwalt,  128  Cal.  493,  496,  61  Pac. 
82;  Hardin  v.  Sin  Claire,  115  Cal. 
460,  463,  47  Pac.  363  (obstruction 
of  right  of  way)  ;  San  Francisco  v. 
Buckman,  111  Cal.  25,  30,  43  Pae. 
396  ( obstruction  of  street )  ;  Bowen  v. 
Wendt,  103  Cal.  236,  238,  37  Pac. 
149  (polluting  waters  of  creek)  ; 
Gardner  v.  Stroever,  89  Cal.  26,  29. 
26  Pac.  618  (obstruction  of  high- 
way) ;  Welsh  v.  County  of  Plumas. 
80  Cal.  338,  343,  22  Pac.  254  (ob- 
struction of  use  of  plaintiff's 
property)  ;  Grandona  v.  Olson,  78 
Cal.  611,  616,  21  Pac.  366, 
12  Am.  St.  Rep.  121;  Learned  v.  Cas- 
tle, 78  Cal.  454,  464,  18  Pac.  872, 
21  Pac.  11  (as  to  right  to  abate  al- 
leged nuisance  by  mandatory  injunc 
tion  and  to  recover  damages)  ;  Tueb- 
ner  v.  California  St.  R.  Co.,  66  Cal. 
171,  174,  4  Pac.  1162  (use  of  one's 
own  property  so  as  not  to  interfere 
with  another)  ;   People  v.  Gold  Run 


6 


Definitions. 


sage  or  use,  iD  the  customary  manner,  of  any  navigable  lake,  or 
river,  bay,  stream,  canal,  or  basin,  or  any  public  park,  square, 


Ditch  &  M.  Co.,  66  Cal.  138,  151 
(discharge  of  mining  debris  into  nav- 
igable waters)  ;  Lytle  Creek  Water 
Co.  v.  Perdew,  65  Cal.  447,  455  (di- 
version and  appropriation  of  waters 
of  stream)  ;  Meyer  v.  Metzler,  51  Cal. 
142,  144  (obstruction  to  free  use  of 
property  by  projecting  wall); 
Pract.  Act,  §  249,  cited  in:  Schulte 
v.  North  Pacific  Transp.  Co.,  50  Cal. 
592,  594  (obstruction  of  street, 
"property  injuriously  affected") 
Hopkins  v.  Western  Pac.  R.  Co.,  50 
Cal.  190,  194  (obstruction  in  street 
in  nature  of  nuisance)  ;  Courtwright 
v.  Beav.  River  &  W.  &  M.  Co.,  30  Cal. 
573,  576  (a  case  of  jurisdiction  to 
abate  nuisances)  ;  Blac  v.  Klumpke, 
29  Cal.  156,  159  (public  or  private 
nuisance  erected  in  highway  by 
water).  See,  also,  Civ.  Code,  §  3479, 
and  citations  thereto  in  next  follow- 
ing note  herein.  See,  also.  Penal  Code, 
§  370,  cited  in:  Siskiyou  Lumber  & 
Mer.  Co.  v.  Rostel,  121  Cal.  511,  513 
(obstruction  to  public  street  or  high- 
way; public  or  private  rights  of  ac- 
tion) ;  People  v.  Truckee  Lumber  Co., 
116  Cal.  397,  399,  39  L.  R.  A.  581, 
48  Pac.  374,  58  Am.  St.  Rep.  183 
(pollution  of  river  and  injury  to 
fish);  Vandeihurst  v.  Tholcke,  113 
Gal.  147,  150,  35  L.  R.  A.  267,  45 
Pac.  266  (obstruction  to  free  use  of 
public  street  is  a  nuisance;  power  of 
city  to  abate)  ;  People  v.  Lee,  107 
Cal.  477,  481,  40  Pac.  754  (in  argu- 
ment in  opinion  as  to  impracticabil- 
ity of  enumerating  certain  offenses 
in  statute;  an  election  law  caoe)  ; 
Taylor  v.  Reynolds,  92  Cal.  573,  574, 


28  Pac.  688  (obstruction  of  street  or 
sidewalk  in  city  is  public  nuisance); 
Ex  parte  Taylor,  87  Cal.  91,  92,  93, 
96,  25  Pac.  258  (validity  of  ordin- 
ance as  to  obstruction  of  sidewalk)  ; 
Ex  parte  Lehmkuhl,  72  Cal.  53,  13 
Pac.  148  (habeas  corpus  for  one 
charged  with  offense  against  State  in 
commission  of  nuisance  by  obstruct- 
ing street)  ;  In  the  Matter  of  Horace 
Hawes,  68  Cal.  412,  413  (writ  of  pro- 
hibition against  trial  of  one  charged 
with  public  nuisance). 

Idaho  Codes  1901  (Civ.  Code). 
2964    (Civ.   Proc),  §   3373. 

Indiana. — Burn's  Rev.  Stat.  1901,  § 
290  (R.  S.  1894,  §§  290,  292;  R.  S. 
1881,  §§  289,  291);  Thornton's  Rev. 
Stat.  1897,  §  292;  Horner's  Rev. 
Stat.  1897,  §  289  (2  G.  &  H.  §  623, 
p.   288). 

The  statute  uses  the  words  "  What- 
ever is  injurious,"  etc.,  and  in  the 
last  clause  it  reads  "  so  as  to  essen- 
tially interfere,"  etc.  State  v.  Ohio 
Oil  Co.,  150  Ind.  21,  36,  49  N.  E.  809, 
47  L.  R.  A.  627,  per  McCabe,  J.; 
Williamson  v.  Yingling,  93  Ind.  11. 
51,  per  Best,  C.  (a  case  of  abatement 
of  mill  dam)  ;  Haag  v.  Board  of 
Comm'rs  of  V.  Co.,  60  Ind.  511,  513, 
per  Niblack,  J.  (a  pest  house)  ;  Ohio 
&  Mississippi  Ry.  Co.  v.  Simon,  40 
Ind.  278,  284  (a  case  of  noise  and 
smells  from  cattle  pens)  ;  Smith  v. 
Fitzgerald,  24  Ind.  316;  Hackney  v. 
State,  8  Ind.  494,  497;  Shroyer  v. 
Campbell,  31  Ind.  App.  83,  07  X.  E. 
193;  State  v.  Herring,  21  Ind.  App. 
157,  48  N.  E.  598,  599,  600,  per 
Wiley,  J.    (a  case  of  befouling  public 


§4 


Definitions. 


street,  or  highway,  is  a  nuisance."11  Another  definition  is  as  fol- 
lows :  "  A  nuisance  consists  in  unlawfully  doing  an  act,  or  omitting 
to  perform  a  duty,  which  act  or  omission  either:  1.  Annoys,  in- 
jures or  endangers  the  comfort,  repose,  health  or  safety  of  others; 
or,   2.  Offends  decency ;   or,    3.  Unlawfully   interferes  with,  ob- 


stream  and  of  jurisdiction)  ;  Para- 
gon Paper  Co.  v.  State,  19  Ind.  App. 
314,  49  N.  E.  600,  602,  per  Robinson, 
C.  J.  (a  case  of  befouling  water  by- 
corporation).  See,  also,  under 
Burn's  Rev.  Stat.  1894,  §  2154  (Rev. 
St.  1881,  §  2066),  Valparaiso  v.  Mof- 
fit,  12  Ind.  App.  250,  39  N.  E.  909, 
911,  per  Lotz,  J.  (a  case  of  pollution 
of  water). 

loioa  Code,  §  4302,  which  uses  the 
words,  "  Whatever  is  injurious  to 
health,"  etc.,  and  also,  "  so  as  essen- 
tially to  interfere,"  etc.  Percival  v. 
Yousling,  120  Iowa,  451,  94  N.  W. 
913.  See,  also,  Van  Fossen  v.  Clark, 
113  Iowa,  86,  84  N.  W.  989,  52  L.  R. 
A.  279. 

Minnesota  Stat.   1894,   §   5881. 

Montana  Civ.  Code  (Codes  1895), 
§  4550. 

Nevada  Comp.  Laws  (Cutting's 
Annot.)  1900,  §  3346:  "Rule  of  the 
common  law  was  practically  adopted 
by  our  Statute."  Bliss  v.  Grayson, 
24  Nev.  422,  454,  56  Pac.  231,  per 
Massey,  J.  See,  also,  Gen.  Stat.,  § 
32Z3,  same  as  text. 

Utah  Rev.  Stat.  1898,  §  3506, 
North  Point  C.  I.  Co.  v.  Utah  &  S. 
L.  Co.,  16  Utah,  246,  270,  67  Am.  St. 
Rep.  607,  8  Am.  &  Eng.  Corp.  Cas. 
N.  S.  98,  40  L.  R.  A.  851,  52  Pac. 
168. 

Ballinger's  Annot.  Codes  and  Stat. 
Wash.  1897,  §  5660,  also  uses  the 
words,  "  So  as  to  essentially  inter- 
fere," etc.,  in  last  clause. 


11.  California  Civ.  Code,  §  3479. 
Spring  Valley  Waterworks  v.  Fifield, 
136  Cal.  14,  68  Pac.  108;  Adams  v. 
City  of  Modesto,  131  Cal.  501,  502. 
63  Pac.  1083  (open  sewer  used  by 
city)  ;  County  of  Los  Angeles  v. 
Spencer,  126  Cal.  670,  673,  59  Pac. 
202,  77  Am.  St.  Rep.  217  (power  of 
legislature  to  declare  that  to  be  a 
nuisance  which  is  such  in  fact)  : 
People  v.  Truckee  Lumber  Co.,  116 
Cal.  397,  399,  39  L.  R.  A.  581,  48 
Pac.  374,  58  Am.  St.  Rep.  183  (pol- 
lution of  river  and  injury  to  fish)  ; 
San  Francisco  v.  Buckman,  111  Cal. 
25,  30,  43  Pac.  396  (obstruction  of 
street)  ;  Ex  parte  Taylor,  87  Cal.  91. 
93,  25  Pac.  258  (validity  of  ordi- 
nance as  to  obstruction  of  sidewalk)  ; 
Cardwell  v.  County  of  Sacramento, 
79  Cal.  347,  348,  21  Pac.  763  (ob- 
struction of  navigable  river)  ;  People 
v.  Park  &  Ocean  R.  R.  Co.,  76  Cal. 
156,  160,  per  Searles,  P.  J.  (a  case 
of  railroad  in  a  public  park)  ;  Shir- 
ley v.  Bishop,  67  Cal.  543,  546,  8 
Pac.  82  (nuisance  in  navigable 
waters)  ;  People  v.  Gold  Run  River 
Ditch  &  M.  Co.,  66  Cal.  133,  147. 
151,  4  Pac.  1152,  56  Am.  Rep.  80 
(discharge  of  mining  debris  into  nav- 
igable stream)  ;  Lytle  Creek  Water 
Co.  v.  Perdew,  65  Cal.  447,  455,  4 
Pac.  426  (diversion  and  appropria- 
tion of  waters  of  stream ) .  See  Penal 
Code,  §  370,  and  citations  thereto  un- 
der last  preceding  note  herein. 


8 


Definitions. 


M 


stmcts  or  tends  to  obstruct  or  render  dangerous  for  passage  any 
lake  or  navigable  river,  bay,  stream,  canal  or  basin,  or  any  public 
park,  square,  s-treet  or  highway ;  or,  4.  In  any  way  renders  other 
persons  insecure  in  life  or  in  the  use  of  property.12  Again,  a  nuis- 
ance is  also  defined  as  "  anything  which  worketh  hurt,  inconven- 
ience, or  damage,  to  another;  and  the  fact  that  the  act  done  may 
otherwise  be  lawful  does  not  keep  it  from  being  a  nuisance.  The 
inconvenience  complained  of  must  not  be  fanciful,  or  such  as 
would  affect  only  one  of  fastidious  taste,  but  it  must  be  such  as 
would  affect  an  ordinary  reasonable  man."13  The  Maine  statute 
also  defines  certain  nuisances  and  makes  provisions  concerning 
them.14    Under  the  Nuisance  Removal  Act  "  the  word  '  nuisance  ' 


Idaho  Codes  1901  (Civ.  Code),  § 
2964    (Civ.  Proc),  §   3373. 

Minnesota. — See  §  7  herein,  statu- 
tory, etc.,  definition — Public  nuis- 
ance. 

Utah — See  §  7  herein,  statutory, 
etc.,  definition — Public  nuisance. 

Montana  Civ.  Code  (Code3  1S95), 
§  4550.     See  Penal  Code,  §  G72. 

Washington. — "  The  obstruction  of 
any  highway,  or  the  closing  of  the 
channel  of  any  stream  used  for  boat- 
ing or  rafting  logs,  lumber,  or  tim- 
ber," is  a  nuisance.  Ballinger's 
Annot.  Codes  and  Stat.  1897,  §  5060. 
12.  North  Dakota. — Rev.  Codes 
1899    (Civ.  Code),  §  5056. 

South  Dakota. — Grantham's  Stat. 
1901  (Civ.  Code),  §  5884;  Rev. 
Codes  1903,  p.  861  (Civ.  Code),  § 
2393. 

Washington.  —  Ballinger's  Annot. 
Codes  and  Stats.  1897,  §  3086. 

State  v.  Paggett,  8  Wash.  579,  582, 
36  Pac.  487,  per  Stiles,  J.  (a  case  of 
maintenance  of  powder  magazine, 
quoting  Code  1881,  §  1235,  and  con- 
sidering Gen.  Stat.  §  2895).  Code 
definition  of  Wash.  Ty.  is  quoted  in 


Northern  Pac.  R.  R.  v.  Wlialen,  14!) 
U.  S.  157,  162,  163,  per  Gray,  J.  (a 
case  of  saloons  along  railway  line). 

13.  2  Ga.  Civ.  Code  1895,  §  3861; 
Hill  v.  McBurney  Oil  &  Fertilizer 
Co.,  112  Ga.,  788,  793,  52  L.  R.  A. 
398,  38  S.  E.  42,  where  Simmons,  C. 
J.,  says :  "  This,  we  think,  is  not  in- 
tended to  change  the  common  law 
definition  of  a  nuisance."  Weiter  v. 
Campbell,  60  Ga.  266,  268;  Phinizy 
v.  City  Council  of  Augusta,  47  G;t. 
260,  266 ;  Vason  v.  South  Carolina  R. 
R.,  42  Ga.  631,  636;  Cooker  v.  Birge, 
9  Ga.  425,  54  Am.  Dec.  347.  See,  also, 
as  to  Ga.  Code,  §§  2948..  2949;  Center 
&  Treadwell  v.  Davis,  39  Ga.  210, 
218,  per  Warner,  J.  (a  case  of  lessor 
and   lessee ) . 

14.  Me.  Rev.  Stat.  1903,  pp.  269- 
273,  chap.  22;  R.  S.  C.  17,  §  5  (which 
is  §  5  of  C.  22,  R.  S.  1903),  is  con- 
sidered in  Varney  v.  Pope,  60  Me. 
192,  194,  per  Appleton,  C.  J.  (a  case 
of  injunction  against  a  mill  dam). 
See,  also,  Mass.  Rev.  Laws  1902,  cov- 
ering nuisances  "in  general;  Burnt 
and  Dangerous  Buildings;  Causes  of 
Sickness,    etc.;    Liquor,    etc.;     Offen- 


9 


§5 


Definitioks. 


under  this  act  shall  include  any  pool,  ditch,  gutter,  water  course, 
privy,  urinal,  cesspool,  drain,  or  ashpit  so  foul  as  to  be  a  nuisance 
or  injurious  to  health.'" 15 

§  5.  Public  or  common  nuisance  defined. — A  public  or  com- 
mon nuisance  is  an  offense  against  the  public  order  and  economy 
of  the  State,  by  unlawfully  doing  any  act  or  by  omitting  to  per- 
form any  duty  which  the  common  good,  public  decency  or  morals, 
or  the  public  right  to  life,  health,  and  the  use  of  property  requires, 
and  which  at  the  same  time  annoys,  injures,  endangers,  renders 
insecure,  interferes  with,  or  obstructs  the  rights  or  property  of  the 
whole  community,  or  neighborhood,  or  of  any  considerable  number 
of  persons;  even  though  the  extent  of  the  annoyance,  injury,  or 
damage  may  be  unequal  or  may  vary  in  its  effect  upon  individuals. 
Another  factor  in  defining  a  nuisance  is,  that  consideration  should 
be  given  to  places  where  the  public  have  the  legal  right  to  go  or 
congregate,  or  where  they  are  likely  to  come  within  the  sphere  of 
its  influence.16     A  nuisance  is"  not  public  though  it  may  injure  a 


sive  Trades;  Private  Nuisances; 
Smoke  Nuisances."  R.  I.  Gen'l  Laws 
1896,  p.  308,  tit.  XIV,  c.  92.  The 
statutes  or  codes  of  the  several 
States  also  make  some  provision  in 
regard  to  nuisances. 

15.  Applied  in  St.  Helen's  Chemi- 
cal Co.  v.  The  Corporation  of  St. 
Helens,  L.  R.  Exch.  196. 

16.  A  public  nuisance  affects  the 
community  at  large,  or  some  consid- 
erable portion  of  it,  such  as  the  in- 
habitants of  a  town.  Hundley  v. 
Harrison,  123  Ala.  292,  296,  26  So. 
294,  per  Haralson,  J.,  citing  16  Am. 
&  Eng.  Ency.  Law  (1st  ed.  1891), 
926;  Gunter  v.  Geary,  1  Cal.  462, 
467,  per  Bennett,  J. 

"  As  the  people  of  a  community 
have  a  right,  of  which  nothing  but  an 
act  of  assembly  can  deprive  them,  to 
pure,  untainted,  uncont animated,  in- 
offensive air,  it  follows  that  whatever 


of  itself  deprives  them  or  interferes 
with  their  enjoyment  of  such  right, 
necessarily  is,  of  itself,  a  public  nuis- 
ance and  indictable;"  and  if  the  peo- 
ple of  the  neighborhood  or  the  public 
are  affested  in  contradistinction  to  a 
few  people,  it  is  a  public  nuisance. 
State  v.  Luce,  9  Houst..  (Del.),  396, 
398,  32  Atl.  1076,  per  Comegys,  Ch. 
J.  (a  case  of  noxious,  etc.,  smells  from 
a  fish  factory). 

"  A  public  nuisance  is  one  that  in- 
jures the  citizens  generally,  who  may 
be  so  circumstanced  as  to  come  with- 
in its  influence."  Nolan  v.  New  Brit- 
ain, 69  Conn.  668,  678  (a  case  of  pol- 
lution of  watercourse.) 

"  A  thing  which  is  in  its  nature  in- 
jurious and  a  source  of  constant  dan- 
ger in  a  populous  place,  may  consti- 
tute a  public  nuisance."  King  v. 
Davenport,  98  111.  305,  315,  38  Am. 
Rep.   89. 


10 


Definitions. 


§5 


great  many  psrsors,  the  injury  being  to  the  individual  property  of 
each.     A  nuisance  is  public  when  it  affects  the  rights  enjoyed  by 


"  A  nuisance  is  public  if  it  annoys 
such  part  of  the  public  as  necessarily 
comes  in  contact  with  it."  Kissel  v. 
Lewis,  15G  Ind.  233,  240,  59  N.  E. 
278,  per  Dowling,  C.  J. 

" '  Every  place  where  a  public 
statute  is  openly,  publicly,  repeat- 
edly, consistently  and  intentionally 
violated,  is  a  public  nuisance.'  "  State 
v.  Ohio  Oil  Co.,  150  Ind.  21,  37,  49 
X.  E.  S09,  47  L.  E.  A.  627,  quoting 
from  State  v.  Crawford,  28  Kan.  726. 
"  All  the  citizens  of  the  State  need 
not  be  injured  to  constitute  a  public 
nuisance.  It  is  sufficient  if  the  health 
of  any  and  all  persons  in  the  neigh- 
borhood generally  is  injured."  Moses 
v.  State,  58  Ind.  1S5. 

"  A  nuisance  is  public  if  it  annoy 
such  part  of  the  public  as  necessarily 
come  in  contact  with  it.'  "  Thus, 
anything  offensive  to  the  sight,  smell, 
or  hearing,  erected  or  carried  on  in 
a  public  place  where  the  people  dwell 
or  pass,  or  have  a  right  to  pass,  to 
their  annoyance,  is  a  nuisance  at 
common  law."  Hackney  v.  The  State, 
8  Ind.  494,  495. 

"  Nuisances  which  affect  a  place 
where  the  people  have  a  legal  right  to 
go  and  where  the  members  thereof 
congregate,  or  where  they  are  likely 
to  come  within  its  influence,  are  pub- 
lic nuisances."  Burlington  v.  Stock- 
well,  5  Kan.  App.  569,  47  Pac.  988. 

"  A  public  or  common  nuis- 
ance is  such  an  inconvenience,  or 
troublesome  offense,  as  annoys  the 
whole  community  in  general  and  not 
some  particular  person."  Veazie  v. 
Dwinel,  50  Me.  479,  481,  482,  per 
Rice,  J.,  citing  4  Bl.  Coram.  166,  167, 


(a   case   of  obstruction  of  "floatable 
stream") . 

"  A  common  or  public  nuisance  is 
that  which  affects  the  people  and  is 
a  violation  of  a  public  right  cither 
by  a  direct  encroachment  upon  public 
property  or  by  doing  some  act  which 
tends  to  a  common  injury  or  by  the 
omitting  of  that  which  the  common 
good  requires  and  which  it  is  the  duty 
of  a  person  to  do.  Public  nuisances 
are  founded  upon  wrongs  that  arise 
from  the  unreasonable,  unwarrant- 
able or  unlawful  use  of  property,  or 
from  improper,  indecent  or  unlawful 
conduct,  working  an  obstruction  or  In- 
jury to  the  public  and  producing  ma- 
terial annoyance,  inconvenience  and 
discomfort  founded  upon  a  wrong,  it 
is  indictable  and  punishable  as  a  mis- 
demeanor." Bohan  v.  Port  Jervis  G. 
L.  Co.,  122  X.  Y.  18,  32,  per  Haight, 
J.,  in  dissenting  opinion. 

Nuisance  is  "  an  injury  to  the  jus 
publicum,  or  common  rights  of  the 
public  to  navigate  the  waters.  Peo- 
ple v.  Vanderbilt,  26  N.  Y.  287,  293, 
per  Selden,  J.  (a  case  of  a  crib  or  pier 
sunk  in  a  public  river),  quoted  in  The 
Idlewild,  64  Fed.  603,  605,  per  Ship- 
man,  C.  J.  (a  case  of  a  wharf  beyond 
bulkhead  line). 

"  To  render  an  act  indictable  as  a 
nuisance,  it  is  necessary  that  it  should 
be  an  offense  so  inconvenient  and 
troublesome  as  to  annoy  the  whole 
community  and  not  merely  particular 
persons."  State  v.  Baldwin,  18  N.  C. 
(1  Dev.  &  Batt's  L.)  195,  197,  per 
Gaston.  J. 

"  Nuisance  is  public  or  common, 
where  the  whole  community     is     an- 


11 


§5 


Definitions. 


citizens  as  part  of  the  public,  as  the  right  of  navigating  a  river,  or 
traveling  on  a  public  highway  ;  rights  to  which  every  citizen  is  en- 
titled.17 


J 


noyed  or  inconvenienced  by  the  offen- 
sive acta,  as  where  one  obstructs  a 
highway  or  carries  on  a  trade  that 
tills  the  air  with  noxious  and  offensive 
fumes."  Village  of  Cardington  v. 
Fredericks,  46  Ohio  St.  442,  446,  21 
N.  E.  766,  per  Spear,  J.  (a  case  of 
obstruction  of  street),  quoting  Coch- 
ran's Law  Lex.  192. 

"  A  nuisance  presupposes  something 
noisome  to  the  neighborhood,  or  dan- 
gerous to  the  people  in  their  com- 
mon and  legitimate  walks,  or  ob- 
structing common  convenience."  Jar- 
vis  v.  Pinckney,  3  Hill  (S.  C),  447, 
459,  per  Richardson,  J.  (a  case  of  de- 
struction of  a  vessel  and  cargo). 

"  A  common  nuisance  affects  the 
people  at  large,  and  is  an  offence 
against  the  State,  but  an  action  may 
be  brought  in  his  own  name  by  any- 
one- who  suffers  damage  peculiar  in 
kind  or  degree  beyond  what  is  com- 
mon to  him  and  to  others."  Powell 
v.  Bentley  &  Gernig  Fur.  Co.,  34  W. 
Va.  804,  807,  12  L.  R.  A.  53,  12  S.  E. 
1085,  per  Hall,  J. 

"  It  is  not  necessary  that  a  public 
nuisance  should  be  injurious  to 
health;  if  there  be  smells  offensive 
to  the  senses,  that  is  enough,  as  the 
neighborhood  has  a  right  to  fresh  and 
pure  air."  Rex  v.  Neil,  2  Carr.  & 
P.  485,  690,  per  Abbott,  C.  J.  (a  case 
of  smells  from  defendant's  manufac- 
tory). 

Where  a  nuisance  is  confined  to  a 
few  inhabitants  of  a  particular  place, 
an  indictment  will  not  be  sustained, 
it  being  at  the  most  only  a  private 
nuisance.    King  v.  Lloyd,  4  Esp.  200. 


In  this  case  the  alleged  nuisance  ex- 
tended only  to  attorneys  who  were 
the  inhabitants  of  three  numbers  only 
of   Clifford's   Inn. 

"  I  conceive  that,  to  constitute  a 
public  nuisance,  the  thing  must  be 
such  as,  in  its  nature  or  its  conse- 
quence, is  a  nuisance — an  injury  or 
a  damage  to  all  persons  who  come 
within  the  sphere  of  its  operation, 
though  it  may  be  so  in  a  greater 
degree   to   some  than  it  is  to  others 

.  .  .  It  does  not  follow,  because 
a  thing  complained  of  is  a  nuisance 
to  several  individuals,  that,  therefore, 
it  is  a  public  nuisance."  Soltau  v. 
De  Held,  2  Simons,  N.  S.  133,  142, 
144,   per  the  Vice   Chancellor. 

17.  King  v.  Morris  &  Essex  Rd. 
Co.,  18  X.  J.  Eq.  397,  399,  per  The 
Chancellor.  See,  also,  citations  in 
last  preceding  note  herein. 

"  '  All  acts  put  forth  by  men,  which 
tend  directly  to  create  evil  conse- 
quences to  the  community  at  large, 
may  be  deemed  nuisances,  where  they 
are  of  such  magnitude  as  to  require 
the  interposition  of  courts.'  "  Mohr 
v.  Gault,  10  Wis.  513,  517,  78  Am. 
Dec.  687,  per  Dixon,  C.  J.,  quoting  2 
Bishop,  §  848. 

"  A  public  nuisance  is  a  violation  of 
a  public  right  either  by  a  direct  en- 
croachment upon  public  rights  or 
property,  or  by  doing  some  act  which 
tends  to  a  common  injury  or  by  omit- 
ting to  do  some  act  which  the  com- 
mon good  requires,  and  which  it  is 
the  duty  of  a  person  to  do,  and  the 
omission  to  do  which  results  injur- 
iously to  the  public."  United  States  v. 


/ 


12 


Definitions. 


§6 


§  6.  Hawkin's  and  Blackstone's  definitions — Public  nuisance. 
— "  A  Common  Nuisance  may  be  denned  to  be  an  Offense 
against  the  Publick,  either  by  doing  a  Thing  which  tends  to  the 
Annoyance  of  all  the  King's  Subjects,  or  by  neglecting  to  do  a 
Thing  which  the  Common  Good  requires."18  Public  or  common 
nuisances  are  those  "  which  affect  the  public  and  are  an  annoyance 
to  all  the  king's  subjects."19  Common  nuisances  are  a  species  of 
offenses  against  public  order  and  economical  regimen  of  the  State; 
being  either  the  doing  of  a  thing  to  the  annoyance  of  all  the  King's 
subjects,  or  the  neglecting  to  do  a  thing  which  the  common  good 
requires.  .  .  .  Common  nuisances  are  such  inconvenience  or 
troublesome  offenses  as  annoy  the  whole  community  in  general  and 
not  merely  some  particular  person."20 


Debs,  64  Fed.  724,  740,  quoting  Wood 
on  Nuis.,  p.  38,  per  Woods,  C.  J.  (a 
case  of  power  of  equity  to  restrain 
public  nuisance).  See,  also,  Ex 
parte  Foote,  70  Ark.  12,  15,  91  Am. 
St.  Rep.  63,  65  S.  W.  706,  per  Battle, 
J.,  (a  question  of  validity  of  ordin- 
ance prohibiting  keeping  of  stallion 
or  jack). 

"  A  common  nuisance  is  an  act 
which  obstructs  or  causes  inconven- 
ience or  damage  to  the  public  in  the 
exercise  of  rights  common  to  all  her 
majesty's  subjects."  Queen  v.  Price, 
L.  R.  12,  Q.  B.  D.  247,  256,  per  Ste- 
phen, J.,  (  a  case  of  burning  a  dead 
body). 

18.  Hawkins  P.  C.  Book,  1  Ch.  75, 
p.  197. 

19.  3  Bl.  Comm.  *  216. 

20.  4  Bl.  Comm.  *  167;  Kinney  v. 
Koopman  &  Gerdes,  110  Ala.  310,  318, 
22  So.  593,  67  Am.  St.  Rep.  119,  37 
L.  R.  A.  497,  per  Coleman,  J.  (a  case 
of  storing  of  gunpowder).  State  v. 
Mayor  &  Aldermen  of  Mobile,  5  Port. 
(Ala.),  279,  311,  30  Am.  Dec.  5G4,  per 
Collier,  J.  (an  obstruction  of  high- 
way by  erection  of  market  house,  a 


like  definition,  but  citing  Bacon )  ; 
Wylie  v.  Elwood,  134  111.  281,  286, 
25  N.  E.  570,  23  Am.  St.  Rep. 
673,  9  L.  R.  A.  726,  per  Ma- 
gruder,  J.  (a  case  of  a  coal  shed)  ; 
Earp  v.  Lee,  71  111.  193,  194,  per  Wal- 
ker, J.  (a  case  of  abatement  of  nuis- 
ance) ;  Moses  v.  State,  58  Ind.  185, 
186  (an  annoyance  to  all  the  King's 
subjects  is  a  public  nuisance  by  com- 
mon law)  ;  Ohio  &  Mississippi  Ry. 
Co.  v.  Simon,  40  Ind.  278,  2S5,  per 
Downey,  J.  (a  case  of  noise  and 
smells  from  cattle  pens)  ;  Trustees 
Cincinnati  So.  Ry.  Co.  v.  Common- 
wealth, 3  Ky.  L.  Rep.  639,  640,  per 
Lewis,  C.  J.  (a  case  of  leaving  a 
hand  car  upon  railroad)  ;  Veazie  v. 
Dwinel,  50  Me.  479,  482,  per  Rice,  J. 
(a  case  of  obstruction  of  river 
though  not  navigable  but  a  "  floatable 
stream");  Ellis  v.  Kansas  City  St. 
J.  &  C.  B.  R.  Co.,  63  Mo.  131,  135, 
per  Norton,  J.  (alleged  nuisance  was 
animal's  carcass)  ;  Hayden  v.  Tucker, 
37  Mo.  214,  221,  per  Wagner,  J. 
(holding  that  the  keeping  and  stand- 
ing of  jacks  and  stallions  within  the 
immediate  view  of  a  private  dwelling 


13 


§7 


Definitions. 


§  7.  Statutory  or  Code  definitions — Public  nuisance. — "  A 
public  nuisance  is  one  which  affects  at  the  same  time  an  entire 
community  or  neighborhood,  or  any  considerable  number  of  per- 
sons, although  the  extent  of  the  annoyance  or  damage  inflicted 
upon  individuals  may  be  unequal."21  Another  definition  is:  "A 
public  nuisance  is  one  which  damages  all  persons  which  come 
within  the  sphere  of  its  influence,  though  it  may  vary  in  its  effect 
upon  individuals."22  Again:  "A  public  nuisance  is  a  crime 
against  the  order  and  economy  of  the  State,  and  consists  in  unlaw- 
fully doing  an  act,  or  omitting  to  perform  a  duty,  which  act  or 


is  a  nuisance)  ;  State  v.  Godwinsville 
&  P.  M.  Road  Co.,  49  N.  J.  L.  266, 
270,  9  Cent.  128,  60  Am.  St.  Rep.  611, 
10  Atl.  666  (citing  also  Angell  on 
Highways,  §  222 )  ;  People  v.  Corpor- 
ation of  Albany,  11  Wend.  (N.  YJ, 
539,  543,  27  Am.  Dec.  95,  per  Nelson, 
J.  (applied  to  a  case  of  a  corporation 
neglecting  to  do  what  the  common 
good  requires)  ;  Lancaster  Turnpike 
Co.  v.  Rogers,  2  Pa.  114,  115,  44  Am. 
Dec.  179,  per  Burnside,  J.  (citing  also 
2  Roll.  Ab.  83,  5  Wils.  Bacon,  146, 
[7  id.  223] )  ;  Jarvis  v.  Pinckney,  3 
Hill  (S.  C),  447,  459,  per  Richard- 
son, J.  (a  case  of  destruction  of  a 
vessel  and  cargo)  ;  United  States  v. 
Debs,  64  Fed.  724,  740,  per  Woods, 
C.  J.  (a  case  of  power  of  equity  to 
restrain  public  nuisance)  ;  Attorney 
General  v.  Tod  Heatly  (1897),  1  Ch. 
560,  566,  66  L.  J.  Ch.  N.  S.  275,  76 
Law  T.  Rep.  N.  S.  174,  176,  per  Lind- 
ley,  J.  J.,  case  reverses  75  Law  T. 
Rep.  452. 

21.  California  Civ.  Code.  §  3480; 
Penal  Code,  §§  370,  371.  "  Anything 
which  is  '  an  obstruction  to  the  free 
use  of  property  so  as  to  interfere 
with  the  comfortable  enjoyment  of 
life  and  property  by  an  entire  com- 
munity or  neighborhood  or  any  con- 
siderable number  of  persons,'     is     a 


public  nuisance."  People  v.  Truckee 
Lumber  Co.,  116  Cal.  397,  48  Pac. 
374,  quoted  in  State  v.  Ohio  Oil  Co., 
150  Ind.  21,  37,  49  N.  E.  809,  47  L. 
R.  A.  627,  per  McCabe,  J. 

Idaho  Codes  1901  (Civ.  Code),  § 
2965. 

Minnesota  Stat.  1894,  §  6614  (given 
under  next  note). 

Montana  Civ.  Code  (Codes  1895), 
§  4551. 

North  Dakota  Rev.  Codes,  1899 
(Civ.  Code),  §  5057. 

South  Dakota  Grantham's  Stat. 
1901  (Civ.  Code),  *  5885;  Rev.  Codes, 
1903,  p.  861    (Civ.  Code),  §  2394. 

Washington. — "  A  public  nuisance 
is  one  which  offects  equally  the  rights 
of  an  entire  community  or  neighbor- 
hood although  the  extent  of  the  dam- 
ages may  be  unequal."  Ballinger's 
Annot.  Codes  &  Stat.  1897,  §  3084; 
§  3085  enumerates  public  nuisances, 
see,  also,  §  3096. 

22.  Ga.  Civ.  Code,  1895,  §§  3858, 
3859;  see  3  Ga.  Civ.  Code,  §  641,  p. 
169;  Savannah  F.  &  W.  R.  Co.  v. 
Parish,  117  Ga.  893,  14  Am.  Neg.  Rep. 
540,  45  S.  E.  280.  See  Hill  v.  Mc- 
Burney  Oil  &  F.  Co.,  112  Ga.  788,  793, 
38  S.  E.  42,  52  L.  R.  A.  398,  Ga.  Civ. 
Code,  §  3861. 


14 


Definitions.  §  7 

omission:  1.  Annoys*,  injures  or  endangers  the  comfort,  repose, 
health  or  safety  of  any  considerable  number  of  persons;  or,  2.  Of- 
fends public  decency  ;  or,  3.  Unlawfully  interferes  with,  obstructs, 
or  tends  to  obstruct,  or  render  dangerous  for  passage,  a  lake,  or  a 
navigable  river,  bay,  stream,  canal  or  basin,  or  a  stream,  creek  or 
other  body  of  water  which  has  been  dredged  or  cleared  at  public 
expense,  or  a  public  park,  square,  street  or  highway;  or,  4.  In  any 
way  renders  a  considerable  number  of  persons  insecure  in  life,  or 
in  the  use  of  property."  23 


23.  New  York  Penal  Code  (Cook's 
Crim.  &  Pen.  Codes  Annot.  1905),  § 
385;  2  Birdseye's  Rev.  Stat.,  Codes, 
etc.  (3d  ed.  1901),  p.  2556,  cited  in 
Tinker  v.  New  York,  Ontario  &  W.  R. 
Co.,  157  N.  Y.  312,  31S,  51  N.  E. 
1031    (obstruction   of   highway). 

§  320  Penal  Code  provides  that  "  an 
act  which  affects  a  considerable  num- 
ber of  persons,  in  either  of  the  ways 
specified  in  the  last  section,  is  not 
less  a  nuisance  because  the  extent  of 
the  damage  is  unequal." 

See,  also,  Minnesota  Stat.  1894,  §§ 
6613,  6614;  Penal  Code,  §§  319,  320. 

Porto  Rico  Pen.  Code,  §  329,  Rev. 
Stat,  and  Codes  1902,  p.  551,  gives 
as  a  definition  of  a  public  nuisance 
the  same  definition  as  that  given  in 
the  text  herein  in  the  section  de- 
fining nuisance,  except  that  after 
the  words  "life  or  property"  and  be- 
fore the  words  "  or  unlawfully  ob- 
structs," it  reads  "  by  an  entire  com- 
munity or  neighborhood,  or  by  any 
considerable  number  of  persons,"  and 
"  is  a  public  nuisance"  the  last  words 
are:    "is  a  public  nuisance." 

Utah  Rev.  Stat.  1898,  §  4275, 
subdv.  "  I,"  differs  in  that  the  words 
at  the  end  are  "  safety  of  three  or 
more  persons;"  and  it  reads  after  the 
word  "  passage  "  in  subdv.  "  3  " — 
"  any   lake,    stream,    canal,    basin   or 


any  public  park,  square,  street  or 
highway,  or  4  in  any  way  renders 
three  or  more  persons  unsecure  in  life 
or  the  use  of  property." 

See,  also,  Utah  Comp.  Laws,  1888, 
§  4556 ;  North  Point  C.  I.  Co.  v.  Utah 
&  S.  L.  Co.,  16  Utah,  246,  272,  07  Am. 
St.  Rep.  607,  40  L.  R.  A.  851,  52  Pac. 
168,  8  Am.  &  Eng.  Corp.  Cas.  X.  S. 
98,  where  it  is  also  said  that  a  nuis- 
ance may  be  offensive  to  the  sense  of 
smell,  sight  or  hearing;  16  Utah,  p. 
271;  People  v.  Burthelsen,  14  Utah, 
258,  47  Pac.  87,  which  holds  that  the 
above  statute  is  not  repealed  by  one 
which  relates  merely  to  befouling 
waters  of  any  stream  used  for  domes 
tic  purposes,  even  though  an  act  un- 
der the  later  law  might  be  a  nuis- 
ance. 

As  to  States  having  a  similar  gen- 
eral definition  as  subdv.  3  in  text,  .*ee 
§  4  herein:  Statutory  or  code  defini- 
tion— nuisance. 

"  Whoever  erects,  continues,  ises, 
or  maintains,  any  building,  structure, 
or  place  for  the  exercise  of  any  trade, 
employment,  or  business,  or  fcr  the 
keeping  or  feeding  of  any  mimal, 
which,  by  occasioning  noxiom  exhal- 
ations, or  noisome  or  dfensive 
smells,  becomes  injurious  to  the 
health,  comfort,  or  proper^  of  indi- 
viduals, or  the  public,  or  causes   or 


15 


IS  8.  9 


Definitions. 


§  8.  Private  nuisance  defined. — A  private  nuisance  is  one 
which  affects  a  private  right  not  common  to  the  public,  or  which 
causes  special  injury  to  person  or  property  of  a  single  person  or  a 
determinate  number  of  persons.24 


§  9.  Blackstone's  definition — Private  nuisance. — Private  nuis- 
ances are  "  anything  done  to  the  hurt  or  annoyance  of  the  lands, 
tenements,  or  hereditaments  of  another."25     It  is  said  in  a  ISTew 


suffers  any  offal,  filth,  or  noisome 
substance,  to  be  collected,  or  to  re- 
main in  any  place,  to  the  damage  or 
prejudice  of  others,  or  the  public,  or 
obstructs  or  impedes,  without  legal 
authority,  the  passage  of  any  navig- 
able river,  harbor,  or  collection  of 
water,  or  corrupts,  or  renders  un- 
wholesome or  impure,  any  water- 
course, stream,  or  water,  or  unlawful- 
ly diverts  any  such  water-course  from 
its  natural  course  or  state,  to  the  in- 
jury or  prejudice  of  others,  or  ob- 
structs or  incumbers,  by  fences,  build- 
ings, structures,  or  otherwise,  any 
public  ground,  or  highway,  or  any 
street  or  alley  of  any  municipal  cor- 
poration, shall  be  fined  not  more  than 
five  hundred  dollars."  3  Bates  Annot. 
Ohio  Stat.  (4th  ed.,  1787-1904),  § 
8921. 

Under  Ballinger's  Annot.  Codes  & 
Slit.  Washington,  1897,  §  7310,  fine 
is  Sve  hundred  dollars  for  public 
nuisance. 

Tie  Illinois  statute  enumerates 
what  are  public  nuisances  and  pro- 
vides for  the  punishment  thereof. 
Hurd'sRev.  Stat.  1903,  p.  657,  §  221 
(Crim.  Code). 

24.  lundley  v.  Harrison,  123  Ala. 
292,  291,  26  So.  294,  per  Heralson, 
J.,  citing  1G  Am.  &  Eng.  Ency.  Law 
(1st  ed.,  1891),  926;  Gunter  v. 
Geary,   1   6d.   462,  467,  per  Bennett, 


J.;  Burlington  v.  Stockwell,  5  Kan. 
App.  569,  47  Pac.  988;  a  private 
nuisance  is  not  necessarily  founded 
upon  a  wrong.  "  It  is  founded  upon 
injuries  that  result  from  the  viola- 
tion of  private  rights  and  produce 
damage  to  but  one  or  few  per- 
sons." Bohan  v.  Port  Jervis  Gas 
Light  Co...  122  N.  Y.  18,  33,  25  N.  E. 
246,  33  X.  Y.  St.  R.  246,  per  Haight, 
J.,  in  dissenting  opinion. 

"  A  private  nuisance  affects  one  or 
more  as  private  citizens  and  not  as 
part  of  the  public,  and  is  ground  for 
a  civil  suit  only."  Powell  v.  Bentley 
&  Gerwig  Fur.  Co.,  34  W.  Va.  804, 
807,  12  L.  R.  A.  53,  12  S.  E.  1085, 
per  Holt,  J. 

"  Whatever  annoys  or  does  damage 
to  another  is  a  private  nuisance." 
And.  L.  Diet.  717,  quoted  in  Payne  v. 
Kansas  &  A.  Val.  R.  Co.,  46  Fed.  546, 
554,  per  Parker,  J.  (a  question  of 
equity  jurisdiction).  See,  further, 
Village  of  Codington  v.  Frederic'  „, 
46  Ohio  St.  442,  446,  21  N.  E.  766, 
per  Spear,  J. 

See,  also,  §§  13,  14  herein  as  to  dis- 
tinction between  public  and  private 
nuisances. 

25.  3  Bl.  Comm.  *  216;  Cartwright 
v.  Bear  River  &  A.  W.  &  M.  Co.,  30 
Cal.  573,  576,  per  Rhodes,  J.  (a  case 
of  jurisdiction  to  abate  nuisance)  ; 
Bonner  v.  Wellborn,  7  Ga.  296,   311, 


16 


Definitions. 


§9 


York  case  that  "  Blackstone  defines  a  nuisance  as  being  anything 
to  the  hurt,  or  annoyance  of  another.  By  hurt,  or  annoyance  here 
is  meant,  not  a  physical  injury  necessarily,  but  an  injury  to  the1 
owner  or  possessor  of  premises,  as  respect's  his  dealings  with  or  hist 
mode  of  enjoying  them.26 


per  Nisbet,  J.  (an  injury  to  medicinal 
Springs)  ;  North  Shore  St.  Ry.  Co.  v. 
Payne,  192  111.  239,  245,  61  N.  E. 
467,  per  Cartwright,  J.  (a  street  rail- 
way power  house)  ;  Laflin  &  Rand 
Powder  Co.  v.  Tearney,  131  111.  322, 
326,  19  Am.  St.  Rep.  34,  23  N.  E.  389, 
7  L.  R.  A.  262,  per  Magruder,  J.  (a 
case  of  storage  of  gunpowder)  ; 
Barnes  v.  Hathorn,  54  Me.  124,  126, 
127  (tomb  erected  on  one's  own 
land)  ;  Ellis  v.  Kansas  City,  St.  J.  & 
C.  B.  R.  Co.,  63  Mo.  131,  135,  per 
Norton,  J.  (alleged  nuisance  was  ani- 
mal's carcass)  ;  Ohio  &  Mississippi 
Ry.  Co.  v.  Simon,  40  Ind.  278,  285, 
per  Downey,  J.  (a  case  of  noise  and 
smells  from  cattle  pens)  ;  Hayden  v. 
Tucker,  37  Mo.  214,  221,  per  Wagner, 
J.  (keeping  and  standing  of  jacks 
and  stallions)  ;  Kavanaugh  v.  Barber, 
131  N.  Y.  211,  213,  43  N.  Y.  St.  R. 
283,  15  L.  R.  A.  689,  30  N.  E.  235, 
per  Andrews,  J.  (fumes  from  asphalt 
factory)  ;  Heeg  v.  Licht,  80  N.  Y.  579, 
582,  36  Am.  Rep.  654,  per  Miller,  J. 
(keeping  gunpowder)  ;  Veazie  v. 
Dwinel,  50  Me.  479,  482,  per  Rice,  J. 
(obstruction  of  river,  not  navigable 
but  "floatable  stream")  ;  Cropsey  v. 
Murphy,  1  Hilt  (N.  Y),  126,  127, 
per  Brady,  J.  (pot  boiling  establish- 
ment) ;  Burdett  v.  Swenswi,  17  Tex. 
489,  502,  G7  Am.  Dec.  665,  per 
Wheeler,  J.;  Payne  v.  Kansas  &  A. 
Val.  R.  Co.,  46  Fed.  546,  554,  per 
Parker,  J.  (a  question  of  equity  jur- 
isdiction). 

"  In  commenting  on  this  definition, 


Judge  Cooley  says:  'An  actionable 
nuisance  may,  therefore,  be  said  to  be 
anything  wrongfully  done  or  permit- 
ted, which  injures  or  annoys  another 
in  the  enjoyment  of  his  legal  rights.' 
Cooley  on  Torts  (2d  ed.),  670."  Pad- 
dock v.  Somers,  102  Mo.  226,  237,  14 
S.  W.  746,   10  L.  R.  A.  254. 

Similar  definitions  are  as  follows: 
"  Anything  unlawfully  done  to  the 
hurt  or  annoyance  of  the  person  as 
well  as  to  the  lands,  tenements  and 
hereditaments  of  another."  Swords 
v.  Edgar,  59  N.  Y.  28,  34,  7  N.  Y. 
Supp.  158,  26  N.  Y.  St.  R.  42;  Timlin 
v.  Standard  Oil  Co.,  54  Hun  (N.  Y.), 
44,  26  N.  Y.  St.  Rep.  42,  7  N.  Y. 
Supp.  158  (case  reversed  126  N.  Y. 
514,  37  N.  Y.  St.  R.  906,  27  N.  E. 
786). 

"  Anything  done  to  the  hurt  or  an- 
noyance of  the  lands,  tenements  or 
hereditaments  of  another,"  quoted  in 
Campbell  v.  Seamen,  2  T.  &  C.  (N. 
Y.),  231,  235,  per  Potter,  J.,  citing 
Crabbe  on  Real  Property,  §  1067,  and 
also  declaring  that  "  This  is  too  gen- 
eral a  definition  to  be  established  as 
a  rule  for  all  cases  or  which  will 
authorize  the  bringing  of  an  action  in 
every  case  coming  within  the  strict 
letter  of  the  definition." 

26.  Rowland  v.  Miller,  15  N.  Y. 
Supp.  701,  702,  per  McAdam,  J.  (a 
case  of  undertaker  establishments). 
See  Eller  v.  Koehler,  68  Ohio  St.  51, 
67  N.  E.  89,  12  Am.  Neg.  Rep.  659, 
per  curiam,  as  to  what  is  too  literal 
an   interpretation   of   this   definition. 


17 


*§  10, 11 


Definitions. 


§  10.  Statutory  or  Code  definitions — Private  nuisance. — The 
codes  of  five  States  provide  that  every  nuisance  not  included  in  the 
definition  of  a  public  nuisance  under  their  codes  is  private.27  A 
private  nuisance  is  also  defined  as  "  One  limited  in  its  injurious 
effects  to  one  or  a  few  individuals."28 


§  11.  Nuisance  defined  with  relation  to  the  maxim  sic  utere, 
etc.29 — The  unauthorized  or  unreasonable  use  of,  or  the  neglect  to 
properly  and  reasonably  use,  one's  own  property,  to  the  detriment, 
hurt,  annoyance,  discomfort,  injury,  or  damage  of  another,  in  his 
property  or  legal  rights,  or  of  the  public,  is  a  nuisance.30     A  use 


27.  California   Civ.    Code,    §    3481. 
Idaho   Codes    1901    (Civ.    Code),   § 

2966. 

Montana  Civ.  Code  (Codes  1895), 
§  4552. 

North  Dakota  Rev.  Codes,  1899 
(Civ.   Code),   §   5058. 

South  Dakota  Stat.  1901  (Gran- 
tham's) (Civ.  Code),  §  5886;  Rev. 
Codes,  1903,  p.  861  (Civ.  Code),  § 
2395. 

Washington.  —  Ballinger's  Annot. 
Codes  &  Stat.  1897,  §  3087,  see  id. 
§§  3093,  5661. 

See,  also,  California  Code  Civ. 
Proc,  last  clause,  §  731. 

Indiana. — Horner's  Rev.  Stat.  1901, 
§  289,  last  clause. 

Georgia  Civ.  Code,  1895,  §§  3858, 
3859;  also 

Nevada  Comp.  Laws  (Cutting's 
Annot.),  1900,  §  3346,  last  clause. 

28.  2  Ga.  Civ.  Code,  1895,  §  3858. 

29.  See  §§  15  et  seq.  herein. 

30.  "  A  nuisance  is  the  unlawful 
use  of  one's  own  property  working  an 
injury  to  the  right  of  another  or  of 
the  public,  and  producing  such  incon- 
venience, discomfort,  or  hurt  that  the 
law  will  presume  a  subsequent  dam- 
age."     State   of    Iowa   v.    Beardsley, 


108  Iowa,  396,  405,  406,  79  N.  W.  138, 
per  Granger,  J.,  citing  Woods  Nuis. 
1,  16  Am.  &  Eng.  Ency.  Law  ( 1st 
ed.),  923. 

"  A  nuisance,  in  legal  phraseology, 
is  a  term  applied  to  that  class  of 
wrongs  that  arise  from  the  unreason- 
able, unwarrantable  or  unlawful  use 
by  a  person  of  his  property,  real  or 
personal.  Every  enjoyment  by  him  of 
his  own  property,  which  violates  the 
rights  of  another,  is,  in  an  essential 
degree,  a  nuisance."  George  v.  The 
Wabash  Western  Ry.  Co.,  40  Mo. 
App.  433,  444,  per  Smith,  P.  J.  (a 
case  of  flooding  land  and  continuing 
nuisance)  ;  citing  Wood's  Nuis.  1.  2. 
See,  also,  Laflin  &  Rand  Powder  Co. 
v.  Tearney,  131  111.  322,  326,  19  Am. 
St.  Rep.  34,  23  N.  E.  389,  7  L.  R.  A. 
262,  per  Magruder,  J.  (a  case  of 
storage  of  gunpowder)  ;  Farrell  v. 
Cook,  16  Neb.  483,  485,  20  N.  W.  720. 
49  Am.  Rep.  721,  per  Maxwell,  J.  (a 
case  of  standing  stallions  and  jacks)  ; 
Bly  v.  Edison  Electric  Illuminating 
Co.,  172  N.  Y.  1,  9,  58  L.  R.  A.  500, 
64  N.  E.  745  ("a  nuisance  is  an  un- 
reasonable, unwarrantable,  or  unlaw- 
ful use  of  one's  own  property  to  the 
annoyance,      inconvenience,      discom- 


18 


Definitions. 


§11 


made  by  one  of  his  own  property  which  works  an  irreparable  in- 
jury to  another's  property,  or  which  deprives  his  neighbor  of  the 
reasonable  and  comfortable  enjoyment  and  use  of  his-  property,  or 
which  violates  the  unwritten  but  accepted  law  of  decency,  or  which 
endanger  or  render  insecure  the  life  and  health  of  his  neighbor,  is 
a  nuisance.31  So  every  enjoyment  by  one  of  his  own  property 
which  conflicts  with  the  rights  of  another  in  an  essential  degree  is 
a  nuisance.32  Another  definition  is:  A  private  nuisance  is  "  where 
one  so  uses  his  property  as  to  damage  another's  or  disturb  his 
quiet  enjoyment  of  it."3  A  nuisance  is  also  defined  as  "  a  tort. 
It  is  '  the  use  of  one's  own  property  which  involves  injury  to  the 
property,  or  other  right,  or  interest  of  the  neighborhood.'  "34  So 
where  anything  is  constructed  on  a  person's  premises,  which  of 
itself,  or  by  its  intended  use,  directly  injures  a  neighbor  in  the 
proper  use  and  enjoyment  of  his  property,  it  is  a  nuisance.35 


fort,  or  damage  of  another"); 
Heeg  v.  Licht,  80  N.  Y.  579, 
582,  36  Am.  Rep.  654,  per  Mil- 
ler, J.  (a  case  of  keeping  gunpow- 
der) ;  Rowland  v.  Miller,  15  X.  Y. 
Supp.  701,  702,  per  McAdam,  J.  (an 
undertaking  establishment)  ;  Henson 
v.  Beckwith,  20  R.  I.  165,  167,  78 
Am.  St.  Rep.  847,  37  Atl.  702,  38  L. 
R.  A.  716,  per  Stiness,  J.  (a  case  of 
lessor  and  lessee). 

The  principle  embodied  in  the 
maxim,  sec  utere,  etc.,  applies  to  the 
public  in  at  least  as  full  force  as 
to  individuals.  Egerton  v.  Brownlow, 
4  H.  L.  Cas.  195,  cited  in  Broom's 
Leg.  Max.  (7th  Amer.  ed.),  1874,  p. 
364  *  366. 

"  Nuisances  to  dwelling  houses  are 
all  acts  done  by  another,  from  with- 
out, which  render  the  enjoyment  of 
life  within  the  house  uncomfortable, 
whether  by  infecting  the  air  with 
noisome  smells,  or  with  gases  injur- 
ious to  health,  or  by  the  exercise  of 
a    trade    by    machinery,    which    pro- 


duces continued  noises  in  the  adjoin- 
ing tenement."  2  Greenleaf  on  Ev., 
§  466,  quoted  in  Aldrich  v.  Howard, 
8  R.  I.  246. 

31.  Lowe  v.  Prospect  Hill  Ceme- 
tery Ass'n,  58  Neb.  94,  107,  46  L.  K. 
A.  237,  78  N.  W.  488,  per  Ragan, 
C. 

32.  Louisville  &  N.  R.  R.  Co.  v. 
Commonwealth  (Super.  Ct.),  16  Ky. 
L.   Rep.    347. 

33.  Village  of  Cardington  v.  Fred- 
ericks, 46  Ohio  St.  442,  446,  21  N.  E. 
766,  per  Spear,  J.  (a  case  of  obstruc- 
tion of  street),  citing  Cockran's  Law 
Lex.  192. 

34.  Merrill  v.  City  of  St.  Louis. 
83  Mo.  244,  255,  53  Am.  Rep.  576. 
per  Philips,  C.  (a  case  of  liability  of 
married  woman),  quoting  1  Hill  on 
Torts,  577. 

35.  Hundley  v.  Harrison.  123  Ala. 
292,  297,  26  So.  294,  per  Haralson, 
J.;  Grady  v.  Wolsner,  46  Ala.  381, 
382,  7  Am.  Rep.  593,  per  Safford,  J. 


13 


§12  Definitions. 

§  12.  Nuisance  per  se  denned. — A  nuisance  per  se,  as  the  term 
implies,  is  a  nuisance  in  itself,  and  which,  therefore,  cannot  be  so 
conducted  or  maintained  as  to  be  lawfully  carried  on  or  permitted 
to  exist.  Such  a  nuisance  is  a  disorderly  house,  or  an  obstruction 
to  a  highway  or  to  a  navigable  stream.36  Again,  "  Nuisances  per 
se  have  been  defined  to  be  such  things  as  are  nuisances  at  all  times 
and  under  all  circumstances,  irrespective  of  location  or  surround- 
ings,"37 

36.  Windfall  Mfg.  Co.  v.  Patter-  292,  296,  26  So.  294,  per  Haralson, 
son,  148  Ind.  414,  420,  421,  37  L.  R.  J.,  quoting  16  Am.  &  Eng.  Ency.  Law 
A.  381,  47  N.  E.  2,  62  Am.  St.  Rep.  (1st  ed),  937,  citing  1  Wood  on  Nuis., 
532,  per  Howard,  J.  §§  24,  27. 

37.  Hundley  v.  Harrison,  123  Ala. 


20 


CHAPTER  II. 

Classification,  Nature  and  Character. 

Section  13.  Difficult  to  determine  whether  nuisance  is  public  or  private;  may 
be  both. 

14.  Extent  of  difference  between  public  and  private  nuisances. 

15.  Two  kinds  of  public  nuisances. 

16.  General  classification  and  distinction  with  relation  to  nuisances 

per  se. 

17.  Nuisance   distinguished   from   trespass. 

18.  Distinction   between   negligence   and   nuisance. 

19.  Nuisance  a  question  of  degree — Difficult  to  define  amount  of  an- 

noyance. 

20.  Injury  must  not  be  fanciful  or  imaginative. 

21.  Trifling   inconvenience  or  discomfort. 

22.  Substantial,  tangible,  material  and  appreciable  injury. 

23.  Acts  of  several  persons  may  constitute  a  nuisance. 

24.  General  nature  and  character  of  nuisance  as  affecting  remedy  or 

relief. 

§  13.  Difficult  to  determine  whether  nuisance  is  public  or 
private;  may  be  both. — Nuisances  are  public  and  private.  It  is 
often  difficult  to  determine  to  which  class  the  alleged  nuisance  be- 
longs. In  many  cases  a  nuisance  may  be  at  the  same  time  both  pub- 
lic and  private,  public  in  its  general  effect  upon  the  public  and  pri- 
vate as  to  those  who  suffer  a  special  or  particular  damage  therefrom 
apart  from  the  common  injury.1    It  is  declared,  however,  that  the 

1.  Aldrich  v.  City  of  Minneapolis,  A  public  nuisance  may  also  be  a 

52  Minn.   164,    171,  53  N.   W.    1072,  private  nuisance.     Kissel    v.    Lewis, 

1073,    per   Mitchell,  J.;     Hayden    v.  156  Ind.  233,  240,  59  N.  E.  278.  per 

Tucker,   37   Mo.   214,  221,  per  Wag-  Dowling,  C.  J. 

ner,  J.  A  nuisance  may  be  both  public  and 

The  doctrine  now  is  that  a  nuis-  private.  Haggart  v.  Stehlin,  137  Ind. 
ance  may  be  at  the  same  time  both  43,  51,  per  McCabe,  J. 
public  and  private.  Wylie  v.  Elwood,  A  nuisance  may  at  the  same  time 
134  111.  281,  287,  25  N.  E.  570,  23  Am.  be  both  public  and  private  and  a  re- 
st. Rep.  673,  9  L.  R.  A.  726,  per  covery  may  be  had  by  one  who  has 
Magruder,  J.  suffered  special  damage  by  reason  of 

21 


§  14  Classification,  Nature  and  Character. 

distinction  between  a  public  and  a  private  nuisance  is  plain  and 
palpable;  the  first  being  an  injury  done  which  affects  the  whole 
community  and  therefore  not  actionable;  the  second  being  an 
injury  to  property,  privileges  or  health  of  individuals  of  that  com- 
munity and  therefore  actionable.2 

g  14.  Extent  of  difference  between  public  and  private  nui- 
sances.— There  is  no  difference  in  principle  between  a  condition 
which  is  called  a  private  and  one  which  is  called  a  public  nuisance, 
the  constituents  of  both  are  the  same.  It  is  not  the  number  who 
Suffer  which  constitutes  an  exclusive  test,  but  the  nature  of  the 
right  affected  which  determines  whether  a  private  or  public  action 
will  lie;  for  the  fact  that  numbers  are  injured  does  not  make  the 
nuisance  such  a  common  one  as  to  exclude  redress  by  private 
remedy  from  a  single  individual.  Nor  is  there  in  this  respect  any 
difference  in  the  nature  or  character  of  the  thing  itself;  that 
which  is  a  public  nuisance,  and  which  annoys  the  public  generally 
or  invades  its  rights,  constitutes  a  private  nuisance  where  an  indi- 
vidual, or  class  of  individuals,  sustains  as  such,  a  special  injury 
as  distinguished  from  that  sustained  by  the  public,  and  redress 
in  such  case  exists  by  way  of  a  private  remedy.  If  the  injury  is 
common  to  the  public  and  special  to  none  redress  must  be  by 
criminal  prosecution  in  behalf  of  the  public.3    A  nuisance,  such  as 

sickness  of  himself  or  family.     Sav-  2.  Lansing  v.  Smith,  4  Wend.    (N. 
annah  F.  &  W.  R.  Co.  v.  Parish,  117  Y.),  9,  30,  per  Allen,  Senator. 
Ga.   893,  45   S.  E.   280,   14  Am.  Neg.  3.  "The  difference  between  a  pub- 
Rep.  540,  542.  lie  nuisance  and  a  private   nuisance, 

"  Although  a   nuisance  be  a  public  does  not  consist  in  any  difference  in 

one,  yet  it  is  private  also,  if  an  indi-  the  nature  or  character  of  the  thing 

vidual  sustain  a  special  injury  there-  itself.      It    is   public    because   of    the 

by."     Village  of  Cardington  v.  Fred-  danger   to  the  public.     It  is   private 

ericks,  46   Ohio   St.  442,   446,   21    N.  only   because   the    individual    as   dis- 

E.  706,  per  Spear,  J.  tinguished  from  the  public  has  been 

See,  also,  Kavunagh  v.  Barber,  131  or  may  be  injured.  Public  nuisances 
N.  Y.  211,  213,  214,  43  N.  Y.  St.  R.  are  indictable.  Private  nuisances  are 
283,  15  L.  R.  A.  689,  30  N.  E.  235;  actionable,  either  for  their  abatement, 
Simpson  v.  Smith,  8  Sim.  272,  per  or  for  damages,  or  both  .  .  .  What- 
Bruce,  V.  C.  See,  further,  section  ever  constitutes  a  public  nuisance  as 
herein  as  to  special  damage  and  pri-  to  the  public  will  constitute  a  pri- 
vate remedy.  vate  nuisance,  if  established  so  as  to 

22 


Classification,   Nature  and  Character. 


14 


an  unreasonable  or  wanton  obstruction  of  a  navigable  stream,  a 
public  highway,  may  be  public  in  its  general  effect  upon  the  public, 
and  at  the  same  time  private  as  to  those  individuals  who  suffer  a 
special  and  particular  damage  therefrom ;  distinct  and  apart  from 


have  the  same  effect  upon  the  premi- 
ses or  health  of  a  private  person  as  it 
would  have  upon  the  public,  if  estab- 
lished in  a  city,  or  highway.  The 
constituents  and  definitions  of  a  nuis- 
ance, whether  public  or  private,  are 
the  same."  Kinney  v.  Koopman  & 
Gerdes,  116  Ala.  310,  319,  320,  323, 
22  So.  593,  37  L.  R.  A.  497,  G7  Am. 
St.   Rep.  119,  per  Coleman,  J. 

"  A  nuisance  is  denominated  private 
because  it  injures  only  a  particular 
individual  or  class  of  individuals, 
and  can  therefore  be  abated  only  by 
him  who  suffers  from  it.  But  a  nuis- 
ance is  common  because  it  is  an  in- 
jury to  the  whole  community.  Every 
person  in  the  community  is  aggrieved, 
and  consequently  every  person  has  the 
right  to  abate  the  nuisance."  Gun- 
ter  v.  Geary,  1  Cal.  462,  467,  per  Ben- 
nett, J. 

Tf  the  annoyance  is  one  that  is 
common  to  the  public  generally,  then 
it  is  a  puklic  nuisance.  The  test  is 
not  the  number  of  persons  annoyed, 
but  the  possibility  of  annoyance  to 
the  public  by  the  invasion  of  its 
rights.  Nolan  v.  New  Britain,  69 
Conn.  668,  678,  38  Atl.  703,  per  An- 
drews, C.  J.  (a  case  of  pollution  of 
watercourse),  citing  Stephens  Dig. 
Cr.  Law,  120 ;  Westcott  v.  Middleton, 
43  N.  J.  Eq.  478;  Wood  on  Nuis- 
ances, 76. 

A  private  nuisance  is  not  the  sub- 
ject of  public  prosecution,  but  of  a 
private  action.  Earl  v.  Lee,  71  111. 
193,  194. 

A  nuisance  will  be  private  to  any- 


one who  in  his  person  or  property 
sustains  any  special  injury  different 
from  that  of  the  public.  Kissel  v. 
Lewis,  156  Ind.  233,  240,  59  N.  E. 
278,  per  Dowling,  C.  J. 

Number  of  persons  annoyed  doe3 
not  determine  character  of  nuisance 
as  public  or  private,  but  the  possibil- 
ity of  annoyance  to  the  public  by  an 
invasion  of  its  rights  furnishes  the 
test.  Burlington  v.  Stockwell,  5  Kan. 
App.  569,  47  Pac.  988. 

Tt  is  not  the  number  who  suffer, 
but  the  nature  of  the  right  affected 
which  determines  whether  a  public  or 
private  action  will  lie.  Aldrich  v. 
City  of  Minneapolis,  52  Minn.  164, 
172,  53  N.  VV.  1072,  1074,  per  Mit- 
chell, J.  See,  also,  Carleton  v.  Rugg, 
149  Mass.  550,  556,  5  L.  R.  A.  193, 
22  N.  E.  55,  14  Am.  St.  Rep.  550; 
Brunner  v.  Schaffer,  11  Pa.  Co.  Ct. 
Rep.  550;  Commonwealth  v.  Rush 
(Pa.),  11  Lane.  L.  Rev.  97.  See, 
also,  as  to  number  of  other  persons 
sustaining  like  injury,  not  precluding 
private  remedy  and  not  being  the  test, 
Fisher  v.  Zumwalt,  128  Cal.  493,  496, 
61  Pac.  82,  per  Cooper,  C. ;  Siegfried 
v.  Hays.  SI  Ky.  377,  380,  50  Am.  Rep. 
167;  Savannah  F.  &  W.  R.  Co.  v. 
Parish,  117  Ga.  893,  45  S.  E.  280,  14 
Am.  Neg.  Rep.  540,  542;  Wylie  v. 
Elwood,  134  111.  2S1,  287,  25  N.  E. 
570,  23  Am.  St.  Rep.  673,  9  L.  R. 
A.  726,  per  Magruder,  J.;  Crane  Co. 
v.  Summers,  83  111.  App.  329;  Kissel 
v.  Lewis,  156  Ind.  233,  240,  59  N. 
E.  278,  per  Dowling,  C.  J.;  Per- 
cival    v.    Yousling,    120     Iowa,    451, 


§14 


Classification,  Nature  and  Character. 


the  common  injury.4  So  when  one  does  an  act  which  "  operates  in- 
juriously to  another  it  will  be  a  private  nuisance  for  which  he  shall 
have  his  action  for  redress ;  but  if  in  addition  thereto  it  is  detri- 
mental to  the  whole  neighborhood,  or  to  the  community  at  large,  it 
is  also  a  public  nuisance  and  the  subject  of  a  criminal  as  well  as 
civil  prosecution.  But  where  a  person  sustains  some  particular  dam- 
age beyond  the  rest  of  the  community,  by  a  public  nuisance,  he  may 
maintain  his  private  action  and  seek  redress  in  the  courts."  If 
the  nuisance  merely  affects  the  rights  enjoyed  by  citizens  as  part 
of  the  public,  as  in  case  of  the  right  to  travel  the  public  highway, 
the  remedy  is  by  proceedings  in  the  name  of  the  state,  even  though 
only  one  person  has  been  prejudiced.  If  the  right  interfered 
with  is  a  private  one,  as  where  one  suffers  in  person  or  estate  on 
account  of  the  nuisance,  an  action  will  lie  without  regard  to  the 
number  who  have  suffered.6  And  where  a  bill  is  filed  to  abate  a. 
nuisance  as  dangerous  to  the  public  health,7  the  relator  must  show 
that  the  situation  or  practice  complained  of  amounts,  without  the 


94  N.  W.  913;  Carleton  v.  Rugg, 
149  Mass.  550,  556,  14  Am.  St. 
Rep.  550,  5  L.  R.  A.  193,  22 
N.  E.  55;  Schoen  v.  Kansas  City,  65 
Mo.  App.  134;  Francis  v.  Schoelkopf, 
53  N.  Y.  152;  Lansing  v.  Smith,  4 
Wend.  (N.  Y.),  9,  25,  27  Am.  Dec. 
89,  per  Walforth,  C. ;  Morris  v.  Gra- 
ham, 16  Wash.  343,  345,  47  Pac.  752, 
58  Am.  St.  Rep.  S3,  per  Gordon,  J.; 
Spokane  Mill  Co.  v.  Post,  50  Fed.  429, 
432,  per  Beatty,  D.  J.  See,  also,  sec- 
tion herein  as  to  special  damages  and 
private  remedy. 

"  There  is  no  difference  in  princi- 
ple between  a  condition  which  is  call- 
ed a  private  and  one  called  a  public 
nuisance.  One  is  where  the  dan- 
ger is  to  the  individual,  the  other 
when  it  is  to  a  number  of  in- 
dividuals or  the  entire  public." 
Wilcox  v.  Hines,  100  Tenn.  (16 
Pick.),  538,  559,  46  S.  W.  297,  66 
Am.  St.  Rep.  770,  per  Wilkes,  J. 


"  Where  the  acts  which  create  the 
public  nuisance  cause  also  private  and 
special  injury  to  the  plaintiff,  an  ac- 
tion at  law  will  lie."  Walker  v. 
Shepardson,  2  Wis.  384,  396,  60  Am. 
Dec.  423,  per  Whiton,  C.  J.  See,  fur- 
ther, as  to  distinction  between  public 
and  private  nuisance,  Wesson  v. 
Washburn  Iron  Co.,  13  Allen 
(Mass.),  95,  100-103,  90  Am.  Dec. 
181,  per  Bigelow,  C.  J. 

4.  Page  v.  Mille  Lacs  Lumber  Co., 
53  Minn.  492,  55  N.  W.  608,  judgment 
vacated  on  rehearing  because  of  non- 
jurisdiction,  55  N.  W.   1119. 

5.  Hayden  v.  Tucker,  37  Mo.  214, 
221,  per  Wagner,  J. 

6.  Aldrich  v.  City  of  Minneapolis, 
52  Minn.  164,  172,  53  N.  W.  1072, 
1074,  per  Mitchell,  J. 

7.  Under  N.  J.  Act,  March  31. 
1887,  §§  28,  29  (P.  L.,  p.  93). 


24 


Classification,  Nature  and  Character. 


15,  16 


aid  of  other  similar  practices  or  situations,  to  a  public  as  distin- 
guished from  a  private  nuisance,  that  it  must  affect  a  considerable 
number  of  persons  and  must  be  such  as  would  be  indictable  at  law.s 
Again,  where  two  parties  desire  to  exercise  a  public  and  general 
right,  and  one  of  them  recklessly  and  carelessly  uses  such  right  to 
the'  prejudice  of  the  other,  without  affecting  the  general  public, 
the  injury  is  a  private  and  not  a  public  wrong,  and  an  information 
on  behalf  of  the  State  will  not  be  sustained.9 


§  15.  Two  kinds  of  public  nuisances. — There  are  two  kinds  of 
public  nuisances.  One  is  that  class  of  aggravated  wrongs  or 
injuries  which  affect  the  morality  of  mankind,  and  are  in  deroga- 
tion of  public  morals  and  decency  and  being  malum  in  se,  are  nui- 
sances irrespective  of  their  location  and  results.  The  other  is  that 
class  of  acts,  exercise  of  occupations  or  trades,  and  use  of  property 
which  become  nuisances  by  reason  of  their  location  or  surround- 
ings. To  constitute  a  nuisance  in  the  latter  class,  the  act  or  thing 
complained  of  must  be  in  a  public  place  or  so  extensive  in  its  con- 
sequences as  to  have  a  common  effect  upon  many,  as  distinguished 
from  a  few.  Where  it  is  in  a  city  or  town,  where  many  are  con- 
gregated and  have  a  right  to  be,  and  produces  material  annoyance, 
inconvenience,  discomfort  or  injury  to  the  residents  in  the  vicinity, 
it  is  a  public  nuisance  of  the  latter  class.10 

§  16.  General  classification  and  distinction  with  relation  to 
nuisances  per  se. — Nuisances  may  be  thus  classified :  First,  those 
which  in  their  nature  are  nuisances  per  se  or  are  so  denounced  by 
the  common  law  or  by  statute;  second,  those  which  in  their  nature 
are  not  nuisances  but  may  become  so  by  reason  of  their  locality, 
surroundings  or  the  manner  in  which  they  may  be  conducted, 
managed,  etc. ;  third,  those  which  in  their  nature  may  be  nuisances, 
but  as  to  which  there  may  be  honest  differences  of  opinion  in  im- 
partial minds.11     Some  things  may  be  nuisances  per  se  under  all 


8.  State  Board  of  Health  of  Hack- 
ensack  v.  Freeholders  of  Bergen,  46 
N.  J.  Eq.  173,  18  Atl.  465. 

9.  Atty.  Genl.  v.  Evart  Booming 
Co.,  34  Mich.  462. 


10.  Ex  parte  Foote,  70  Ark.  12,  15. 
91  Am.  St.  Rep.  63,  65,  S.  W.  706. 
per  Battle,  J. 

11.  City  of  Carthage  v.  Munsell. 
203  111.  474,  478,  67  N.  E.  831,  per 


25 


§  16  Classification,  Nature  and  Character. 

circumstances  as  to  all  persons;  other  things  are  nuisances  only 
under  certain  circumstances  and  as  to  certain  persons.  A  slaugh- 
ter-house may  be  a  nuisance  as  to  the  owner's  neighbors  but  none  at 
all  as  to  his  employes  in  the  business.12  Not  every  annoyance  to 
the  comfort  and  enjoyment  of  living  is  a  nuisance  per  se.13  "  The 
distinction  between  nuisances  which  are  such  per  se,  and  those 
uses  which  become  such  by  reason  of  the  character  of  the  use  or  the 
place  ;  have  also  been  recognized.  .  .  .  unless  the  thing  of  itself 
because  of  its  inherent  qualities,  without  complement,  is  produc- 
tive of  injury,  or  by  reason  of  the  manner  of  its  use  or  exposure, 
threatens  or  is  dangerous  to  life  or  property,  it  cannot  be  said  to 
be  a  nuisance  per  se  at  common  law.  If  an  occupation  be  lawful 
and  by  care  and  precaution  it  can  be  conducted  without  danger 
or  inconvenience  to  another,  the  occupation  is  not  per  se  a  nui- 
sance, and  if  such  an  occupation  or  business  becomes  a  nuisance 
it  is  because  of  a  want  of  proper  care  or  precaution.  .  .  .  The 
question  of  care  and  diligence  does  not  arise  in  cases  of  damages 
resulting  from  nuisance  per  se,  because  the  thing  itself  was  unlaw- 
ful."14 The  difference  between  a.  nuisance  per  se  and  a  lawful 
business  carried  on  so  as  to  become  a  nuisance  lies  rather  in  the 
proof  than  in  the  remedy.15  "  A  business  lawful  in  itself  cannot 
be  a  nuisance  per  se,  although,  because  of  surrounding  places  or 
circumstances,  or  because  of  the  manner  in  which  it  is  conducted, 
it  may  become  a.  nuisance.  Certain  kinds  of  business  or  struc- 
tures, as  powder  houses  or  nitroglycerine  works,  are  so  dangerous 
to  human  life  that  they  may  be  maintained  only  in  the  most  remote 
and  secluded  localities.  Others,  as  slaughter  houses  and  certain 
foul  smelling  factories,  are  so  offensive  to  the  senses  that  they 
must  be  removed  from  the  limits  of  cities  and  towns,  and  even 

Ricks.   J.,  quoting  Langel  v.  City  of  (N.  Y.),  231,  234.  per  P.  Potter,  J., 

Bushnell,    197   111.   20,   26,    63   N.   E.  ease  aff'd  63  N.  Y.  568. 

10S6,  per  Boggs,  J.  14.  Kinney  v.  Koopman  &  Gerdes, 

12.  Whitmore  v.  Oronto  Pulp  &  116  Ala.  310,  318,  319,  323,  22  So. 
P.  Co.,  91  Me.  297,  307,  39  Atl.  1032,  593,  37  L.  R.  A.  497,  67  Am.  St.  Rep. 
64  Am.  St.  Rep.  229,  40  L.  R.  A.  377,  119,  per  Coleman,  J. 

per  Emery,  J.    (a  case  of  machinery  15.  Dennis    v.    Eckhard,   3    Grants 

and   fixtures    as   between    lessor    and  Cas.    (Pa.),   390,   392,     per     Thomp- 

lessee  or  servant).  son,    J. 

13.  Campbell  v.  Seamen,  2  T.  &  C. 

26 


Classification^   Natuke  and  Chabacteb.  §17 

from  the  near  neighborhood  of  family  residences.  Yet  there  must 
be  some  proper  place  where  every  lawful  business  can  be  carried 
on,  without  danger  of  interference  on  the  part  of  those  who,  in 
some  slight  degree,  may  be  annoyed  or  endangered  by  the  nearness 
of  the  objectionable  occupation."16  Again,  "  Only  conduct  which 
is  a  nuisance  per  se  is  at  all  times  and  under  all  circumstances  a 
nuisance,  although  there  are  some  lawful  trade?  and  modes  of 
using  property  which  by  universal  noxiousness  and  offensiveness 
are  prima  facie  nuisances.  But  the  fact  that  a  certain  business  is 
prima  facie  a  nuisance  does  not  relieve  the  complainant  of  the 
necessity  of  proving  that  the  business  is  in  fact  a  nuisance."17 

§  17.  Nuisance  distinguished  from  trespass. — The  distinction 
between  a  nuisance  and  a  trespass  is  that  in  the  former  the  injury 
is  consequential  and  results  generally  from  some  act  committed 
beyond  the  limits  of  the  property  affected,  while  in  the  latter  the 
infringement  of  property  rights  is  direct  and  the  injury  imme- 
diate. The  act  in  the  former  is  wrongful  because  of  the  conse- 
quent results.  It- consists  in  such  a  use  of  one's  own  property  as 
to  injure  some  right  or  interest  of  another.  The  law  regards  the 
injury,  damage  or  discomfort  thus  occasioned  and  not  the  particu- 
lar trade  or  occupation  from  which  these  result.18    A  nuisance  may 

16.  The  Windfall  Mfg.  Co.  v.  Pat--*  but  only  from  the  consequences  which 

terson,  148  Ind.  414,  420,  421,  37  L.  may   flow   from   it.     In   the  one   case 

R.   A.   381,   47   N.   E.   2,   62  Am.   St.  the  injury  is  immediate;  in  the  other 

Rep.  532,  per  Howard,  J.  it  is  consequential,  and  generally  re- 

1,7.  Eller  v.    Koehler,  G8   Ohio   St.  suits  from   the  commission  of  an  act 

51,  07  N.  E.  89,  12  Am.  Neg.  Rep.  059.  beyond  the  limits  of  the  property  af- 

18.  Norcross   v.   Thomas,    51     Me.  fected."      High    on     Injunctions     (3d 

503,  504,  81  Am.  Dec.  588,  per  Dick-  ed.).     §      739,     citing     Reynolds     v. 

erson,  J.;    Wright    v.   Syracuse  B.  &  Clarke,  2  Ld.  Raym.  1399   (where  the 

N.  Y.  R.  Co.,  49  Ilun    (N.  Y. ),  445,  distinction   is  made  between   trespass 

448,  23   N.  Y.   St.  R.     78,    3    N.    Y.  and  trespass  on  the  case,  the  former 

Supp.    480,   per  Kennedy,  J.  being  the  remedy  where  the  act  is  im- 

"  The  distinction  between  trespass  mediately  injurious,  but  where  the 
and  nuisance  consists  in  the  former  act  itself  is  not  an  injury,  but  a  con- 
being  a  direct  infringement  of  one's  sequence  from  that  act  is  prejudicial 
rights  of  property,  while  in  the  latter  to  the  plaintiff,  his  proper  remedy  is 
the  infringement  is  the  result  of  an  by  an  action  on  the  case).  Weston  v. 
act  which  is  not   wrongful   in    itself,  Woodcock,     5     Mees.     &     Wals,     587 


§  18  Classification,  Nature  and  Character. 

be  merely  a  consequence  of  a  perfectly  lawful  act,  as  in  case  of  a 
subsidence  of  plaintiffs'  lands  resulting  in  injury  to  him  caused  by 
a  lawful  act  of  another  in  making-  mines.19  In  an  early  English  case, 
upon  a  writ  of  enquiry  of  damages  in  trespass  continuando  trans- 
gressionen ,  it  was  insisted  that  the  evidence  might  be  given  of  con- 
sequential damage  after  the  period  specified,  as  well  as  in  a  nui- 
sance which  continued  after  the  same  period,  and  the  cause  is 
removed,  if  the  effect  continues  afterwards,  damage  may  be  recov- 
ered for  it.  But  Holt,  C.  J.,  said  he  "  was  not  satisfied  that  the 
parity  would  hold,  for  the  gist  of  the  action  in  a  nuisance  is  the 
damage ;  and  therefore  as  long  as  there  are  damages  there  is 
ground  for  an  action ;  but  trespass  is  one  entire  act,  and  the  very 
tort  is  the  gist  of  the  action."  And  therefore,  he  said:  "He 
doubted,  whether  an  action  would  lie  for  the  continuance  of  a 
trespass  as  for  that  of  a  nuisance."20 

§18.  Distinction  between  negligence  and  nuisance. — There  is 
a  distinction  between  a  case  of  negligence  and  of  nuisance  or  con- 
sequential damage.  Thus,  if  a  corporation  is  clothed  with  the 
right  of  eminent  domain  and  conducts  its  operations  without  negli- 
gence or  malice  and  an  injury  results  it  is  damnum  absque  injuria, 
but  if  no  such  right  exists  and  consequential  injuries  result  it  is  a 
nuisance.21  If  a  person  so  uses  his  property  as  to  injure  materially 
the  property  and  comfort  of  existence  of  those  who  dwell  in  the 
neighborhood,  negligence  is  not  essential  to  establish  a  cause  of 
action  for  injuries  of  such  a  character,  and  in  such  case  negligence 
should  be  proven.  But  where  the  damage  is  the  necessary  conse- 
quence of  defendants'  acts,  or  is  incident  to  the  business  itself  or 
the  manner  in  which  it  is  conducted,  the  law  of  negligence  has  no 

(where  there  was  an  injury  to  plain-  there   is   no  other  remedy    but    tres- 

tiff's    possession,    and,   therefore,   the  pass." 

subject  of  an  action  of  trespass,  but  19.  Valley    R.    Co.    v.    Franz,    43 

Parke,  B.,  said:   "There  is  no  doubt  Ohio,  623,  2  West.  362,  4  N.  E.  88. 

that   where  there   is   a   direct   injury  20.  The   case    of    The    Farmers   of 

and  also  a  consequential  damage,  that  Hempstead    Water,     12    Mod.   *    510 

may  form  a  subject-matter  either  of  (Case  869). 

case  or  trespass;  but  where  there  is  a  21.  Hauck  v.   Pipe  Line   Co.   Ltd., 

direct  injury  to  the  soil  and  freehold,  153  Pa.  St.  366,  374,  34  Am.  St.  Rep. 

710,  20  L.  R.  A.  642,  26  Atl.  644. 

28 


Classification,  Mature  and  Character.  §  19 

application  and  the  law  of  nuisance  applies.22  So  where  one  does 
acts  upon  his  own  property  which  injure  another  he  is  liable  even 
though  in  doing  the  act  he  was  not  guilty  of  negligence.  Thus 
where  defendant  excavated  a  tunnel  on  his  own  land,  extending 
under  the  bed  of  a  stream,  and  the  pressure  of  the  water  broke  in 
the  roof  of  the  tunnel  and  the  water  rushed  in  and  undermined 
plaintiffs'  land,  the  defendant  was  held  liable  for  the  damage 
occasioned  without  proof  of  negligence  or  unskilfullness  on  his 
part.23  Again  negligence  may  exist  in  relation  to  a  nuisance.  It 
is  a  modification  of  the  general  rule,  as  to  trespassers  or  bare 
licensees  and  the  safety  of  children  who  are  such,  that  the  owner 
of  open  or  other  grounds  where  children  are  permitted  to  resort 
by  such  owner  may  be  liable  for  his  negligence  in  keeping  on  the 
premises  any  attractive  danger  or  nuisance  or  unseen  dangerous 
conditions  whereby  a  child  may  be  injured.24 

§  19.  Nuisance  a  question  of  degree — Difficult  to  define 
amount  of  annoyance. — Although,  as  an  abstract  question,  a  right 
of  action  exists  as  well  for  a  slight  as  for  a  great  injury,  such  right 
not  being  dependent  upon  the  degree  of  the  injury,25  nevertheless 
nuisance  is  a  term  that  may  be  generally  stated  to  consist  of  de- 
grees ;  it  may  be  very  great  or  insignificantly  slight.26     This  ques- 

22.  Bohan  v.  Port  Jervis  Gas  Light  alleged  nuisance  is  created  by  noise, 
Co.,  122  N.  Y.,  18,  25  N.  E.  246,  33  smoke,  odor  and  light,  the  question 
N.  Y.  St.  R.  246,  case  affirms  45  Hun,  is  one  of  degree  as  well  as  of  local- 
257,  27  Wkly.  D.  136,  10  N.  Y.  St.  R.  ity)  ;  Campbell  v.  Seaman,  2  T.  &  C. 
364.  (N.  Y.),  231,  234,  per  P.  Potter,  J. 

23.  Cahill  v.  Eastman,  18  Minn.  (Injunction  granted.)  See,  also, 
324,  10  Am.  Rep.  184.  Eller  v.  Koehler,  68  Ohio  St.  51,  67 

24.  Ann  Arbor  R.  Co.  v.  Kinz,  N.  E.  89,  12  Am.  Neg.  Rep.  659,  per 
68  Ohio  St.  210,  67  N.  E.  479,  14  Am.  curiam  (action  for  damages  to  health 
Neg.  Rep.  183,  189.  See  1  Thompson's  and  property)  ;  Pottstown  Gas  Co.  v. 
Conn,  on  Neg.,  §   1025.  Murphy,  39  Pa.  257,  263    (action  on 

That  negligence  may  be  an  impor-  the     case     against     gas     company)  ; 

tant  factor,  see  State  v.  Portland,  74  Powell   v.    Bentley   &    Gerwig    Furni- 

Me.  268,  271,  272,  43  Am.  Rep.  586,  ture  Co.,  34   W.  Va.  804,  812,   12  L. 

per  Barrows,  J.  R.  A.  53,  12  S.  E.  1085,  43  Alb.  L.  J. 

25.  Cooper  v.  Randall,  53  111.  24,  433  (where  Holt,  J.,  says  the  ques- 
26.  tion  is  in  its  very  nature  one  of  de- 

26.  Ackers  v.  Marsh,  19  App.  D.  gree). 
C.  28,  44  (where  it  is  said  that  where 

29 


Classification,  Nature  and  Character.  §  19 

tion  of  degree  depends  upon  varying  circumstances'  so  as  to  pre- 
clude a  precise  definition  of  what  amount  of  annoyance,  discom- 
fort or  convenience  will  constitute  a  nuisance.27  It  is  difficult  to 
define  just  what  degree  of  injurious  influence  must  be  reached  in 
order  to  warrant  the  court  in  determining  what  circumstances 
constitute  a  nuisance.  A  mere  tendency  to  injury  is  not  sufficient, 
there  must  be  something  actually  appreciable  which  of  itself 
arrests  the  attention,  that  rests  not  merely  in  theory,  but  strikes 
the  common  sensfe  of  the  ordinary  citizen.  The  determination, 
however,  of  the  question  rests  in  sound  judgment  and  depends 
upon  common  sense  in  each  case.28  So  in  a  New  Jersey  case  the 
court  says :  "  But  the  question  remains,  what  degree  of  discomfort 
is  necessary  to  constitute  a  nuisance?  It  is  clear  that  everything 
that  renders  the  air  a  little  less  pure,  or  is  to  any  extent  disagree- 
able, is  not  necessarily  a  nuisance.  .  .  .  The  word  '  uncomfort- 
able '  is  not  precise.  ...  In  fact  no  precise  definition  can  be 
given;  each  case  must  be  judged  by  itself.29  If  property  cannot 
be  enjoyed  unless  the  health  is  endangered  thereby  a  nuisance 
exists.30  It  is  not  necessary,  however,  in  order  to  constitute  a  nui- 
sance that  the  annoyance  should  be  of  such  a  character  as  to 
endanger  the  health  of  a  person  or  persons,  or  of  the  neighborhood, 
the  act  need  not  be  positively  unhealthy ;  it  is  sufficient  if  it  occa- 
sions that  which  is  offensive  to  the  senses  and  that  it  in  any  way 
renders   the   enjoyment  of  life   and   property   uncomfortable,   or 

"It  is  always  a    question    of    de-  28.  State     Board     of     Health     of 

gree").      Crump   v.    Lambert,    L.   R.  Hackensaek  v.  Freeholders  of  Bergen, 

3  Eq.  Cas.  409,  414,  per  Lord  Romil-  46  N.  J.   Eq.    173,   177,   178,   18  Atl. 

ly,  M.  R.    (Injunction  to  restrain  is-  465,  per  Pitney,  V.  C.     Bill  filed  by 

suing  of  smoke  and  effluvia  from  fac-  State  to  abate  nuisance  as  dangerous 

tory  chimney)  ;  see  Wesson  v.  Wash-  to  public  health. 

burn  Iron  Co.,  13  Allen    (Mass.),  95,  29.  Ross  v.   Butler,   19   N.   J.   Eq. 

100-103,  90  Am.  Dec.   181,  per  Bige-  294,   306,  97  Am.  Dec.  654,  per  The 

low,    C.    J.    (action   to   recover    dam-  Chancellor     (bill   brought  by   several 

ages  for  nuisance  to  an  inn  and   its  individuals  for  nuisance  to  health  and 

occupation  and  to  health).  comfort,  etc.). 

27.  Columbus   Gas   Light   &    Coke  30.  Campbell  v.  Seaman,  2  Thomp. 

Co.  v.  Freeland,  12  Ohio  St.  392,  399,  &  C.   (N.  Y.),  231,  aff'd  63  N.  Y.  568, 

per  Gholson,  J.    (an  action  for  nuis-  20        Am.        Rep.       567     (Injunction 

ance  and   for     damages     caused     by  granted), 
odors,  etc.,  from  manufactory). 

30 


§19 


Classification,  Nature  ami  Character. 


that  it  prevents  its  enjoyment  in  as  full  and  ample  a  manner  as 
before,  that  it  invades  or  violates  a  vested  right  and  materially 
interferes  with  the  ordinary  comfort  of  human  existence31  or  ren- 
ders one's  dwelling  house  unfit  for  habitation  ;32  and  if  the  enjoy- 
ment of  life  and  property  has  been  so  rendered  uncomfortable, 
it  is  not  indispensable  to  sustain  a  right  of  action  that  one  should, 
by  the  annoyance  or  alleged  nuisance,  have  been  driven  from  his 


dwelling   or   habitation. 


So    even    that    which    causes    a    well 


founded,  reasonable  apprehension  of  damage  may  be  a  nuisance.34 


31.  State  v.  Wetherall,  5  liar. 
(Del.),  487  (case  of  common  nuis- 
ance) ;  Barnes  v.  Hathorn,  54  Me. 
124,  127,  per  Kent,  J.  (an  action  for 
damages)  ;  Ross  v.  Butler,  19  N.  J. 
Eq.  294,  299,  301,  97  Am.  Dec.  654, 
per  The  Chancellor  (bill  by  several 
individuals  for  nuisance  to  health  and 
comfort)  ;  Davidson  v.  Isham,  9  X. 
J.  Eq.  186,  189  (bill  to  restrain  busi- 
ness as  nuisance)  ;  Cropsey  v.  Mur- 
phy, 1  Hilt.  (X.  Y.),  126,  127,  per 
Brady,  J.  (action  for  damages)  ;  Cat- 
lin  v.  Valentine,  9  Paige  Ch.  (X.  Y.), 
575,  576,  38  Am.  Dec*.  567,  per  The 
Chancellor  (bill  to  restrain  erection 
of  slaughter  house)  ;  Brady  v.  Weeks, 
3  Barb.  (X.  Y.)  157,  159,  per  Paige, 
J.  (bill  to  restrain  use  of  building  as 
slaughter  house)  :  Burditt  v.  S  wen- 
son,  17  Tex.  489,  502,  67  Am.  Dec. 
665,  per  Wheeler,  J.  (petition  for  in- 
junction for  abatement  and  dam- 
ages) ;  Rex  v.  White.  1  Burr.  333, 
337,  per  Lord  Mansfield  (conviction 
on  indictment  for  mantaining  nuis- 
ance near  highway). 

"The  real  question  in  all  cases  is 
the  question  of  fact,  viz.,  whether  the 
annoyance  is  such  as  to  materially  in- 
terfere with  the  ordinary  comfort  of 
human  existence."  Crump  v.  Lam- 
bert, L.  R.,  3  Eq.  Cas.  409,  413,  per 
Lord  Romilly,  M.  R.,  quoted  in  Sus- 


quehanna Fertilizer  Co.  v.  Spangler, 
86  Md.  562,  570,  63  Am.  St.  Rep.  533, 
39  Atl.  270,  per  Bryan,  J.  (action 
for  damages  for  nuisance). 

32.  Hayden  v.  Tucker,  37  Mo.  214, 
221,  per  Wagner,  J. 

33.  Hayden  v.  Tucker,  37  Mo.  214, 
221,  per  Wagner,  J.;  Ross  v.  Butler, 
19  X.  J.  Eq.  294,  300,  97  Am.  Dec. 
654;  Bohan  v.  Port  Jervis  Gas  L.  Co., 
122  X.  Y.  18,  23,  33  X.  Y.  St.  R. 
246,  25  X.  E.  246,  9  L.  R.  A.  711,  per 
Brown.  J.;  McKeon  v.  See,  51  X.  Y. 
300,  306,  10  Am.  Rep.  659,  per  Hunt, 
C;  Fish  v.  Dodge,  4  Denio  (X.  Y.), 
311,  316;  Yocum  v.  Hotel  St.  George 
Co.,  18  Abb.  X.  C.  (X.  Y.),  340,  341, 
per  Brown,  J.;  Campbell  v.  Seaman, 
2  T.  &  C.  (X.  Y.),  231,  237,  per  P. 
Potter,  J. 

It  is  not  necessary  that  the  house 
should  be  rendered  useless  in  order 
to  maintain  an  action;  it  is  sufficient 
if  the  injury  should  be  such  as  t'>  ren- 
der the  enjoyment  of  life  there  un- 
comfortable. Aldrich  v.  Howard,  8 
R.  I.  240,  248,  249. 

34.  Barnes  v.  Hathorn,  54  Me.  124. 
127,  128,  per  Kent,  J.,  id.  133,  per 
Dickerson,  J.,  iu  dissenting  opinion. 
Mohawk  Bridge  Co.  v.  Utica  &  S.  R. 
Co.,  6  Paige  (X.  Y.),  554;  Burdett 
v.  Svvenson,  17  Tex.  489,  502,  67  Am. 
Dec.  665,  per  Wheeler,  J. 


31 


§  20  Classification,  Nature  and  Character. 

Again,  an  action  lies  for  a  nuisance  to  the  house  or  land  of  a 
person,  whenever,  taking  all  the  circumstances  into  consideration, 
including  the  nature  and  extent  of  the  plaintiff's  enjoyment 
before  the  act  complained  of,  the  annoyance  is  sufficiently  great 
to  amount  to  a  nuisance  according  to  the  ordinary  rule  of  law; 
and  this  whatever  the  locality  may  be  where  the  act  complained 
of  is  done.35 

§  20.  Injury  must  not  be  fanciful  or  imaginative — Judgment 
of  ordinary  men  as  test — State  of  health. — The  injury  should  not 
be  merely  theoretical  or  imperceptible.36  The  discomfort  must  be 
physical  as  distinguished  from  that  which  depends  upon  taste  or 
imagination.37  The  act  or  omission  must  be  something  that  pro- 
duces real  discomfort  or  annoyance  through  the  medium  of  the 
senses,  not  from  delicacy  of  taste  or  refined  fancy.  It  should  not 
be  merely  speculative  and  mental  or  of  a  temporal  and  spiritual 
character  only.  The  fact  that  a  person  is  fastidious  or  overrefined, 
so  that  his  taste  is  offended  or  his  nerves  disturbed,  does  not  make 
that  a  nuisance  which  would  have  no  effect  upon  another,  or  upon 
all  others  without  those  peculiar  sentiments  and  tastes.  The  judg- 
ment of  reasonable  men  should  be  the  test,  and  also  the  effect 
which  the  alleged  nuisance  would  have  upon  men  of  normal 
nervous  sensibilities  and  of  ordinary  tastes,  habits,  and  modes  of 
living,  having  in  view  all  the  circumstances  of  the  case,  the  vested 
and  clear  rights  of  complainant,  and  also  the  actual  injury  pro- 
duced. On  the  other  hand,  a  nuisance  is  none  the  less  one  because 
there  may  be  persons  whose  habits  and  occupations  have  brought 
them  to  endure  the  same  annoyance  without  discomfort  or  incon- 
venience, where  such  nuisance  is  offensive  to  persons  generally,  or 
produces  physical  discomfort,  annoyance  and  inconvenience  in  a 
material  degree,   and  substantially  interferes  with  the  ordinary 

35.  Bamford  v.  Turnley,  3  Best  &  '  37.  Wahle  v.  Reinbach,  76  111.  322, 
S.  62,  113  Eng.  C.  L.  61,  Pollock,  C.  327,  per  Scholfield,  J.  (a  bill  in 
B.,  dissentiente.  equity)  ;    Westcott    v.   Middleton,   43 

36.  Dorman     v.    Ames,     12   Minn.  N.  J.   Eq.  478,   486,   11   Atl.  490,   10 
451,  Gilf.  347,  358    (an  action  to  re-  Cent.  202;  Cleveland  v.  Citizens'  Gas 
cover  damages  and  for  abatement  ol  Light  Co.,  20  N.  J.  Eq.  205,  206. 
nuisance). 

32 


Cxassification,  Nature  and  Character. 


20 


comfort  of  human  existence.38  So  the  court,  in  an  Ohio  case,  says : 
"  Regard  should  be  had  to  the  notions  of  comfort  and  convenience 
entertained  by  persons  generally,  of  ordinary  tastes  and  suscepti- 
bilities. What  such  persons  would  not  regard  as  an  inconvenience 
materially  interfering  with  their  physical  comfort,  may  be  prop- 


38.  Cooper  v.  Randall,  53  111.  24 
(if  inconvenience  is  a  clear  and  plain 
interference  and  not  fanciful  merely, 
it  is  sufficient  to  sustain  an  action  on 
the  case  although  the  jury  would  not 
give  damages  when  incapabale  of 
reasonable  measurement  in  dollars 
and  cents)  ;  Owen  v.  Phillips,  73  Ind. 
284,  295  (the  question  of  nuisance  or 
no  nuisance  does  not  depend  upon 
whether  the  acts  complained  of  cause 
discomfort  to  persons  of  elegant  and 
dainty  modes  and  habits  of  living. 
This  case  was  one  for  injunction  and 
abatement)  ;  Dittman  &  Berger  v. 
Ripp,  50  Md.  516,  522,  523,  33  Am. 
Rep.  325  (the  judgment  of  reason- 
able rule  and  men  of  ordinary  sensi- 
bilities, habits,  and  tastes,  should 
constitute  the  test,  as  well,  also,  as 
the  actual  physical  discomfort  sus- 
tained by  the  invasion  of  the  plain- 
tiff's rights,  considering  all  the  cir- 
cumstances of  the  case,  where  remedy 
by  injunction  is  sought  against  an  ex- 
isting or  threatened  nuisance)  ;  Rog- 
ers v.  Elliott,  146  Mass,  349,  350,  351, 
4  Am.  St.  Rep.  316,  15  N.  E.  768  (the 
effect  upon  ordinary  persons  or  others 
generally,  is  the  test,  not  the  effect 
upon  particular  persons  peculiarly 
susceptible.  This  case  was  an  action 
of  tort  for  a  nuisance)  ;  Harper  v. 
Standard  Oil  Co.,  78  Mo.  App.  338, 
345,  2  Mo.  App.  Rep'r,  221  (should 
be  a  just  apprehension  of  the  injury 
in  the  minds  of  persons  of  normal 
nervous     sensibility)  ;      Westcott     v. 


Midleton,  43  N.  J.  Eq.  478,  486,  11 
Atl.  490,  10  Cent.  202  (a  nuisance  ia 
none  the  less  so  because  there  may 
be  persons  whose  habits  and  occupa- 
tions have  brought  them  to  endure 
the  same  annoyance  without  discom- 
fort. The  injury  must  be  physical 
as  distinguished  from  one  purely 
imaginative.  It  must  be  something 
that  produces  real  discomfort  or  an- 
noyance through  the  medium  of  the 
senses,  not  from  delicacy  of  taste  or 
refined  fancy)  ;  Cleveland  v.  Citizens' 
Gas  Light  Co.,  20  N.  J.  Eq.  201,  206 
(same  points  as  last  citation)  ;  Ross 
v.  Butler,  19  N.  J.  Eq.  294,  298,  97 
Am.  Dec.  654  ( "  The  law  takes  care 
that  lawful  and  useful  business  shall 
not  be  put  a  stop  to  on  account  of 
every  trifling  or  imaginary  annoyance 
such  as  may  offend  the  taste  or  dis- 
turb the  nerves  of  a  fastidious  or 
over-refined  person");  Buttcrfield  v. 
Klaber,  52  How.  Pr.  (N.  Y.),  255, 
258,  264  ("People,  however,  who 
have  extraordinary  sensibilities,  or 
nervous  temperaments,  the  sick,  the 
afflicted,  they  whose  refined  tastes, 
habits  and  inclinations  lead  them  to 
prefer  complete  silence  and  seclusion, 
and  an  abode  remote  from  the  busy 
haunts  of  human  industry,  are  not  to 
be  selected  as  best  qualified  to  attest 
or  determine  the  precise  limits  of 
mutual  forbearance  or  the  absolute 
essentials  of  comfortable  enjoyment." 
There  must  be  a  material  interfer- 
ence  with   the   comfortable  existence 


33 


§  20  Classification,  Nature  and  Character. 

erly  attributed,  when  alleged  to  be  a  nuisance,  to  tbe  fancy,  or 
fastidious  taste,  of  the  party.  On  the  other  hand,  the  charge  of  a 
nuisance,  if  it  be  of  a  thing  offensive  to  persons  generally,  cannot 
be  escaped,  by  showing  that  to  some  persons  it  is  not  at  all  un- 
pleasant or  disagreeable."  39  And  in  a  Pennsylvania  decision  it 
is  declared  that  the  true  rule  in  judging  of  an  injury  from  nui- 
sances is,  that  it  be  such  as  naturally  and  necessarily  results  to  all 
alike  who  were  within  their  influence,  not  to  one  on  account  of 
peculiar  sentiments,  feelings,  or  tastes,  if  it  would  have  no  effect 
on  another,  or  all  others  without  those  peculiar  sentiments  or 
tastes.  It  must'  be  something  about  the  effects  of  which  all  agree ; 
otherwise,  that  which  might  be  no  nuisance  to  the  majority,  might 
be  claimed  to  deteriorate  property  by  particular  persons.40  So  in 
a  West  Virginia  case  it  is  also  declared,  that  in  fixing  the  standard 
by  which  to  measure  what  shall  be  deemed  a  nuisance  the  nature 
of  the  man  offended  as  well  as  the  nature  of  the  thing  offending 
must  be  considered.  For  such  standard  one  should  not  be  taken 
who  by  reason  of  his  sensitive  nature,  inborn  or  acquired,  or  by 
reason  of  his  habits  or  mode  of  living,  is  supersensitive  to  the 
annoyance  complained  of;  nor,  on  the  other  hand,  are  ^ve  to  take 

of   ordinary    people    in    good    health.  Y.  349,  350,  10  Law  T.  240  (must  be 

This  case  was  an  application  for  an  such  a  sensible  and  real  damage,  hav- 

injunction)  ;       Neuhs       v.       Graselli  ing  regard  to  the  situation  and  mode 

Chemical  Co.,  8  Ohio  Dec.  203,  213,  5  of  occupation  of  the  property  injured, 

Ohio   N.   P.   359    (one   is   not   obliged  as  a  sensible  person  would  find  injur- 

where  he  respects  his  neighbors'  legal  ious.    This  was  a  case  of  action  for  a 

rights,  to  consult  their  tastes  and  fan-  nuisance)  ;  Anony.  3  Atk.  750   ("  The 

cies    as    to   what   use   he   may   make  fears  of  mankind  though  they  be  rea- 

of  his  property)  ;  Sparhawk  v.  Union  sonable   will  not   create  a  nuisance," 

Passenger  By.   Co.,  54   Pa.  401,   424,  per     Lord     Hardwicke,     quoted      in 

428      (the     injury     must     be     of     a  Rhodes  v.   Dunbar,  57   Pa.   274,  289, 

temporal,     not     merely     of    a    spirit-  98   Am.  Dec.   221). 

ual  character,  although  an  injury  is  39.  Columbus   Gas   Light   &    Coke 

alleged  and   proven,  but  such   injury  Co.  v.  Freeland,  12  Ohio  St.  392,  399, 

is   not  tangible   or   material    and    is  per  Giiolson,  J.,  .a  case  of  action  for 

merely    speculative     and     mental     or  a  nuisance  and  damages, 

spiritual   only,   it  is  damnum  absque  40.  Sparhawk  v.  Union   Passenger 

injuria  and     not    cognizable     in     the  Ey.   Co.,  54  Pa.   St.  401,  427.     Case 

courts.     This  case     was     a     bill     in  was  bill  in  equity, 
equity)  ;    Scott  v.   Forth,   4   Fost.   & 

34 


Classification,  Nature  and  Character 


§20 


one  who,  by  nature  or  habit,  is*  abnormally  insensible  to  such 
things.  The  idiosyncrasies  or  peculiar  habits  or  modes  of  living 
of  neither  class  furnish  the  proper  test.  The  standard  must  be  the 
normal  man;  the  one  of  ordinary  sensibility,  of  ordinary  habits 
of  living,  the  plain,  well-to-do  people  who  make  up  the  great  mass 
of  the  busy  world.41  So  in  a  frequently  cited  English  case  it  is 
said  substantially  that  the  inconvenience  should  be  something  more 
than  fanciful,  or  as  one  of  mere  delicacy  or  fastidiousness,  that 
is,  an  inconvenience  materially  interfering  with  the  ordinary 
comfort  physically  of  human  existence,  not  merely  according  to 
elegant  or  dainty  modes  and  habits  of  living,  but  according  to 
plain,  sober  and  simple  notions  among  the  English  people.  If 
the  alleged  nuisance,  if  prosecuted,  abridge  and  diminish  seriously 
and  materially  the  ordinary  comfort  and  existence  to  the  occupier 
and  inmates'  of  a  dwelling  house,  whatever  their  rank  or  station  or 
state  of  health  may  be,  it  may  constitute  a  nuisance.42  Again,  an 
injury  to  single  individual,  from  lead  poisoning,  because  of  a 
peculiar  and  exceptional  sensibility  or  susceptibility  of  such  per- 
son to  such  influence,  when  a  trace  of  arsenic  or  lead  was  so  slight 
as  not  in  any  degree  to  affect  other  persons,  would  not  be  sufficient 
to  make  leadworks  a  common  or  public  nuisance;43  and    where 


41.  Powell  v.  Bentley  &  Gerwig 
Furniture  Co.,  34  W.  Va.  804,  810, 
12  S.  E.  1085,  12  L.  R.  A.  53,  43  Alb. 
L.  J.  433,  per  Holt,  J.,  who  dis- 
cusses  the  matter  "on  grounds  com- 
mon to  a  suit  at  law  for  damages,  and 
a  suit  in  equity  to  forbid,  abate  or 
restrain." 

42.  Walter  v.  Selfe,  15  Jur.  410, 
419,  4  Eng.  L.  J.  Eq.  15,  4  DeG.  & 
Sm.  (a  case  for  injunction),  per 
Knight  Bruce,  V.  C.,  quoted,  consid- 
ered or  cited  in  Akers  v.  Marsh,  19 
App.  D.  C.  28,  45;  Cooper  v.  Ran 
dull,  53  111.  24,  27;  Rogers  v.  El- 
liott, 140  Mass.  349,  352,  4  Am.  St. 
Rep.  310,  15  N.  E.  708;  Westcott  v. 
Middleton,  43  N.  J.  Eq.  478,  480,  11 
Atl.  490,  10  Cent.  202;  Ross  v.  But- 


ler, 19  N.  J.  Eq.  294,  298,  299 
(compare  id.  305),  97  Am.  Dec.  54; 
Sparhawk  v.  Union  Passenger  Ry. 
Co.,  54  Pa.  St.  401,  427;  Crump  v. 
Lambert,  L.  R.  3  Eq.  409,  412,  per 
Lord  Romilly,  M.  R.,  where  it  is 
said:  "This  definition  is  adopted  in 
Soltau  v.  De  Held,  2  Sim.  N.  S.  133, 
by  Vice-Chancellor  Kindersley,  and 
is,  I  apprehend,  strictly  correct;  and 
it  agrees  with  the  principle  of  all  the 
cases  referred  to  at  common  law  and 
approved  in  the  case  of  St.  Helens 
Smelting  Co.  v.  Tipping,  11  H.  L.  a 
042,"  11  H.  L.  Cas.  Full  reprint 
1483. 

43.  Price  v.  Grantz,  118  Pa.  402, 
412,  21  Wkly.  N.  of  C.  0,  11  Atl.  794, 
10  Cent.  018,  4  Am.  St.  Rep.  001,  an 


05 


§  21  Classification,  Nature  and  Character. 

sunstroke  has  caused  a  like  susceptibility  to  noise,  which  does  not 
affect  persons  of  ordinary  health  and  strength,  no  ground  of  action 
exists,  in  the  absence  of  express  malice,  for  causing  such  noise.44 
So  the  delicate  condition  of  a  female  plaintiff  whereby  she  is  an- 
noyed and  disturbed  by  noise  incident  to  playing  a  croquet  game 
at  night,  there  being  no  malicious  motive  in  so  playing,  is  subject 
to  a  like  rule.45  And  where  it  does  not  appear  that  any  save  a 
single  person  of  most  sensitive  taste  on  the  subject  has  been  an- 
noyed equity  will  not  interfere.46  Again,  whether  a  thing  is  or  is 
not  a  nuisance  does  not  depend  upon  and  is  not  to  be  measured  by 
the  natures  of  people  living  in  a  designated  locality,  as  the  natures 
of  one  class  may  differ  from  those  of  another.47  An  act  may,  how- 
ever, be  "  injurious  to  the  health,"  under  a  statute,  and  so  afford 
a  ground  for  relief,  where  it  is  calculated  to  cause  sick  persons  to 
suffer  even  though  not  injurious  to  persons  in  sound  health. 

§  21.  Trifling  inconvenience  or  discomfort. — Where  the  dis- 
comfort is  almost  imperceptible  and  wholly  unsubstantial  no  such 
nuisance  exists  as  to  warrant  relief,  for  not  every  trifling  injury 
or  inconvenience  constitutes  an  actionable  nuisance.49  So  where 
an  employment,  which  is  not  a  nuisance  per  se,  is  a  useful  one, 
the  fact  that  it  will  produce  some  discomfort  or  even  some  injury 
to  those  near  by  will  not  justify  an  injunction.50     Again,  it  is. 

action   in   case;      declaration  was   as  48.  Malton  Local  Board  v.  Malton 

for    a    common    nuisance   with    aver-  Farmers  Manure  Co.,  49  L.  J.  M.  C. 

ment  of  special  damage.  90,  44  J.  P.  155,  4  Ex.  D.  310,  under 

44.  Rogers    v.    Elliott,    146    Mass.  Public  Health  act,   1875,  s.  114. 
349,   4   Am.   St.   Rep.   316,    15   N.   E.  49.  Shaw  v.   Forging  Co.,   10  Ohio 
768  (a  case  of  tort  for  a  nuisance).  Dec.    107,    110;      Neuhs  v.   Grasselli 

45.  Akers  v.  Marsh,  19  App.  D.  C.  Chemical  Co.,  8  Ohio  Dec.  203,  213, 
28.  In  this  case  it  was  also  charged  5  Ohio  N.  P.  359.  See,  also,  Price 
that  the  husband  was  an  architect  v.  Grantz,  118  Pa.  402,  4  Am.  St. 
and  that  his  work  required  the  full  Rep.  601,  11  Atl.  794,  10  Cent.  618, 
composure  of  his  nervous  system,  etc.  21  Wkly.  N.  C.  6. 

Relief  by  injunction  was  sought.  50.  Huckenstine's   Appeal,   70   Pa. 

46.  Westcott  v.  Middleton,  43  N.  102,  106,  70  Am.  Rep.  669,  cited  in 
J.  Eq.  478,  11  Atl.  490,  10  Cent.  202.  Campbell   v.   Seaman,  63   N.   Y.   568, 

47.  Owen  v.  Phillips,  73  Ind.  284,  581,  20  Am.  Rep.  567. 
294,  295   (a  case  of  prayer  for  injunc- 
tion and  for  abatement). 

36 


Classification,  Nature  and  Character.  §  22 

declared  in  an  English  case  that  where  an  injury  to  property  is 
claimed  in  a  neighborhood  where  many  great  manufacturing  works 
are  carried  on  the  law  does  not  regard  trifling  inconveniences. 
Everything  must  be  looked  at  from  a  reasonable  point  of  view. 
The  law  only  regards  sensible  inconveniences  which  sensibly 
diminish  the  comfort,  enjoyment  or  value  of  the  property  which 
is  affected ;  that  is,  the  injury  fo  be  actionable  must  be  such  as 
visibly  to  diminish  the  value  of  the  property  and  the  comfort  and 
enjoyment  of  it.  In  places  where  great  works  are  carried  on 
persons  must  not  stand  on  their  extreme  rights  and  bring  actions 
in  respect  to  every  matter  of  annoyance.51  So  where  an  injunction 
was  sought  to  restrain  a  gas  company  from  opening  up  the  streets 
and  laying  down  gas  pipes,  the  court  refused  to  restrain  the  com- 
pany from  continuing  their  works  because  the  nuisance  or  damage, 
if  any  existed,  was  of  a  transient  or  trivial  nature  "  that  to  no  one 
spot,  or  to  no  one  individual  can  it  be  said  to  be  more  than  & 
passing  and  almost  imaginary  evil."  52 

§  22.  Substantial,  tangible,  material  and  appreciable  injury. 
— As  we  have  elsewhere  substantially  stated  an  action  may  be 
sustained  where  there  is  an  injury  without  actual  damage,  and  that 
if  a  clear  legal  right  has  been  clearly  invaded  damage  may  be 
presumed  and  at  least  nominal  damages  are  recoverable  in  such 
case.53  It  is  also  true  that  nuisance  is  a  question  of  degree  diffi- 
cult to  define.54  These  rules  must,  however,  be  construed 
in  connection  with  another  general  rule  which  is  this :  that  in 
order  to  create  a  nuisance  from  the  use  of  property  a  material, 
substantial  and  appreciable  injury  must  be  occasioned  to  the 
person  or  property  of  another.  The  ordinary  comfort  of  human 
existence  or  the  physical  enjoyment  of  life  and  property,  must  be 
essentially  interfered  with  or  rendered  inconvenient,  or  the  value 

51.  St.  Helens  Smelting  Co.  v.  field  Gas  Consumers  Co.,  19  Eng.  L. 
Tipping,  11  H.  L.  Cas.  642,  644,  652,  J.  Eq.  639,  17  Jur.  677,  22  L.  J.  N. 
35  L.  J.  Q.  B.  66,  13  W.  R.  1083.  12  S.  Ch.  811,  3  DeG.  M.  &  G.  304,  1 
L.  T.  776,  11  Jur.  N.  S.  785,  per  Lord  W.  R.  185. 

Wensdale    in    opinion,    and    per    Mr.  53.  See  §  39  herein. 

Justice  Mellen  in  charge  to  jury.  54.  See  §  19  herein. 

52.  Attorney-General    v.   The  Shef- 

37 


§22 


Classification,  Nature  and  Character. 


of  property  substantially  impaired.55     A  substantial  damage  may, 
however,  be  occasioned  by  a  nuisance  even  though  the  land  affected 


55.  Hoadley  v.  Seward  &  Son  Co., 
71  Conn.  640,  646,  42  Atl.  997  (case 
of  action  for  damages  and  for  in- 
junction), per  Andrews,  C.  J.,  who 
says :  "  To  constitute  a  nuisance,  the 
use  must  be  such  as  to  produce  a 
tangible  and  appreciable  injury  to 
neighboring  property,  or  such  as  to 
render  its  enjoyment  specially  un- 
comfortable or  inconvenient,"  citing 
Campbell  v.  Seamen,  63  N.  Y.  568, 
576;  Hurlburt  v.  McKane,  55  Conn. 
31. 

The  use  must  be  such  as  to  work  a 
tangible  injury  to  the  person  or  prop- 
erty of  another,  or  such  as  renders 
the  enjoyment  of  property  essen- 
tially uncomfortable.  It  must  be 
such  a  use  as  produces  a  tangible,  ap- 
preciable injury  to  the  proprety,  or 
as  renders  its  enjoyment  essentially 
uncomfortable  or  inconvenient.  Flood 
v.  Consumers  Co.,  105  111.  App.  559, 
562,  per  Burke,  J.  (a  case  of  a  bill 
for  an  injunction). 

"  The  annoyance,  inconvenience  or 
discomfort  complained  of  must  be  a 
subsisting  and  substantial  grievance, 
materially  affecting  the  ordinary 
comfort  of  human  existence,  as  un- 
derstood by  the  American  people  in 
their  present  state  of  enlightenment, 
and  not  according  to  the  crude  and 
fanciful  notions  of  a  semi-barbarous, 
or  less  enlightened  age."  Barnes  v. 
Hathorn,  54  Me.  124,  131,  per  Dick- 
erson,  J.,  in  dissenting  opinion  (a 
case  of  action  for  damages). 

" The  extent  of  the  injury  is  not 
generally  considered  very  important. 
It  should  be  substantial  of  course  and 
not  merely  nominal,"   applied  to   ob- 


struction of  public  highway  and  spe- 
cial injury  to  private  person.  Wake- 
man  v.  Wilbur,  147  N.  Y.  657,  663. 

"  It  has  always  been  the  law  that 
in  order  to  subject  one  to  an  action 
for  nuisance  the  injury  must  be  ma- 
terial and  substantial.  It  must  not 
be  a  figment  of  the  imagination.  It 
must  be  substantial."  Eller  v. 
Koehler,  68  Ohio  St.  51,  55,  67  N.  E. 
89,  12  Am.  Neg.  Rep.  659  (an  action 
for  damages  to  health  and  property 
by  noise  and  vibration  occasioned  by 
steam  hammers). 

There  must  be  a  substantial,  not 
a  trifling  injury.  Price  v.  Grantz, 
118  Pa.  402,  4  Am.  St.  Rep.  601,  10 
Cent.  618,  11  Atl.  794,  21  Wkly.  N. 
C.  6. 

Substantial,  tangible,  material  in- 
jury must  be  shown.  Sparhawk  v. 
Union  Passenger  Ry.  Co.,  54  Pa.  St. 
401,  424,  428,  per  Thompson,  J. 

"  It  is  well  settled  that  the  law 
gives  protection  only  against  sub- 
stantial injury.  To  be  of  legal  cog- 
nizance the  injury  must  be  tangible 
or  the  discomfort  perceptible  to  the 
senses  of  ordinary  people.  ...  In 
other  words  the  comfort,  enjoyment, 
or  use  must  be  materially  affected  or 
impaired."  Stadler  v.  Grieben,  61 
Wis.  500,  504,  21  N.  W.  629  (action 
at  law  under  §§  3180,  3181,  Rev. 
Stat.). 

Damages  must  be  sensible  and  real, 
not  merely  nominal,  regard  being  had 
to  the  situation,  use  and  mode  of  en- 
joyment of  the  property  injured. 
Scott  v.  Firth,  4  Fin.  &  F.  349,  10 
Law  T.  240. 


38 


Classification,  Katuke  and  Character.       §§  23,  24 

may  bs  sold  thereafter  for  as  large  a  sum  as  before.56  In  case  the 
alleged  nuisance  consists  of  noxious  gases  or  vapours  the  injury 
must  be  substantial  and  real  as  distinguished  from  a  mere  trifling 
injury  consequent  upon  carrying  on  the  business  in  a  proper  way.57 
The  damage  must  also  in  such  case,  be  actual,  visible,  and  sub- 
stantial, such  as  is  apparent  to  an  ordinary  person  and  not  merely 
perceptible  by  means  of  scientific  or  microscopic  examination,08 
and  generally  scientific  conclusions  from  facts  are  to  be  regarded 
as  secondary  in  importance  to  facts  proved."9  Again,  it  is  declared 
that  in  order  to  warrant  redress  in  equity  a  substantial  and  essen- 
tial injury  must  be  done ;  there  must  be  a  wrongful  invasion  of  a 
legal  right  and  the  resulting  damage  must  be  serious  and  sub- 
stantial.69 So  where  it  is  sought  to  restrain  a  parson  from  im- 
proving his  property  there  must,  in  order  to  obtain  relief,  be  a  real 
and  sensible  injury  to  the  right  of  the  complainant.61  But  a  dan- 
ger, which  is  apparent  and  real,  as  distinguished  from  an  im- 
aginary fear  of  injury,  from  the  alleged  nuisance  may  warrant 
equitable  relief.62 

§  23.  Acts  of  several  persons  may  constitute  a  nuisance. — ■ 
The  acts  of  several  persons  together  may  constitute  a  serious  in- 
jury and  a  nuisance  which  the  court  will  restrain  even  though  the 
amount  of  obstruction  caused  by  any  of  them  might  not,  if  it  stood 
alone,  be  appreciable  or  sufficient  to  give  any  ground  of  com- 
plaint.63 

§  24.  General  nature  and  character  of  nuisance  as  affecting 
remedy  or  relief. — It   is   a   factor    of   importance,    affecting    the 

56.  Penn  v.  Taylor,  24  111.  App.  60.  Owen  v.  Phillips,  73  Ind.  284, 
292.  291,  per  Elliott,  J.     See  §  27  herein. 

57.  Price  v.  Grantz,  118  Pa.  402,  61.  Shrieve  v.  Voorhies,  3  N.  J. 
4  Am.  St.  Rep.  601,  11  Atl.  794.  Eq.  25. 

58.  Salvin    v.     North     Brancepeth  62.  Cheatham  v.  Shearon,   1  Swan 
Coal  Co.,  44  L.  J.  Ch.  149,  31   L.  T.  (31  Tenn.),  213,  55  Am.  Dec.  734. 
154,  L.  R.   9  Ch.  705,  22  W.  R.  904  63.  Thorpe   v.    Brumfitt,    L.    R.    8 
(case  for  mandatory  injunction).  Ch.  App.  Cas.  650;   case  and  principle 

59.  Goldsmid  v.  Tunbridge  Wells  applied  in  Lambton  v.  Mellish,  63  L. 
Improvement  Commissioners,  35  L.  J.  Ch.  D.  929,  71  L.  T.  385  [1894], 
J.  Ch.  382,  12  Jur.  N.  S.  308,  14  W.  3  Ch.  163,  43  W.  R.  5. 

R.  562,  L.  R.  1  Ch.  349,  14  L.  T.  154. 

39 


24 


Classification.   Nature  and  Character. 


remedy  or  relief,  whether  the  claimed  nuisance  is*  a  continuing, 
constantly  recurring  and  permanent  one,  or  merely  a  temporary  or 
slight  one  in  its  nature  or  character.64     A  nuisance,  may,  however, 


64.  St.  Louis,  Iron  Mountain  & 
Southern  Ry.  Co.  v.  Biggs,  52  Ark. 
240,  12  S.  W.  331,  6  L.  R.  A.  804 
(a  case  of  successive  recoveries  for 
permanent  nuisance,  and  statute  of 
limitations)  ;  Southern  Ry.  Co.  v. 
Cook,  117  Ga.  286,  43  S.  E.  697 
(judgment  for  nuisance  not  perma- 
nent not  a  bar  to  fresh  action  for 
damages);  Oswald  v.  Wolf,  129  111. 
209  (grievance  must  be  continually 
recurring  to  warrant  relief  in 
equity)  ;  Owen  v.  Phillips,  73  Ind. 
284;  Cleveland,  Cincinnati,  Chicago 
&  St.  Louis  Ry.  Co.  v.  King,  23  Ind. 
App.  573,  55  N.  E.  875  (a  case  of 
election  of  remedy  for  permanent  in- 
jury or  continuous  wrong  and  extent 
of  recovery)  ;  Holbrook  v.  Griffis, 
Iowa,  1905,  103  N.  W.  479  (distinc- 
tion between  permanent  and  tempo- 
rary nuisance  as  to  measure  of  re- 
covery) ;  Shively  v.  Cedar  Rapids, 
Iowa  Falls  and  Northwestern  Ry. 
Co.,  74  Iowa,  169,  7  Am.  St.  Rep.  471, 
37  N.  W.  133  (a  case  of  temporary 
nuisance  and  damages)  ;  Baldwin  v. 
Oskaloosa  Gas  Light  Co.,  57  Iowa,  51, 
10  N.  W.  317  (a  case  of  a  finding 
equivalent  to  one  for  permanent  in- 
jury) ;  Powers  v.  City  of  Council 
Bluffs,  45  Iowa,  652,  24  Am.  Rep. 
792  (continuance  of  nuisance  and 
nature  of  damage)  ;  Elizabethtown, 
Lexington  &  Big  Sandy  R.  Co.  v. 
Combs,  10  Bush  (73  Ky.),  382,  19 
Am.  Rep.  67  (single  recovery  where 
injury  is  continuing  and  perma- 
nent) ;  Cumberland  v.  Oxford  Canal 
Co.  v.  Hutchings,  65  Me.  140  (con- 
tinuing    nuisance      and      damages)  ; 


Cadigan  v.  Brown,  120  Mass.  493 
(joinder  of  parties  where  permanent 
injury  threatened)  ;  County  of 
Stearns  v.  St.  Cloud,  Mankato  & 
Austin  R.  Co.,  36  Minn.  425,  32  N. 
W.  91  (injunction  lies  where  nui- 
sance of  permanent  nature)  ;  Learned 
v.  Hunt,  63  Miss.  373  (right  to  in- 
junction where  nuisance  continuing 
or  constantly  recurring)  ;  Harretson 
v.  Kansas  City  &  Atlantic  R.  Co.,  151 
Mo.  482,  52  S.  W.  368;  Pinney  v. 
Berry,  61  Mo.  359  (continuing  nui- 
sance and  measure  of  damages)  ; 
Markt  v.  Davis,  46  Mo.  App.  272 
(when  damages  not  to  be  awarded 
where  nuisance  a  continuing  one, 
permanent  injury  distinguished)  ; 
Town  of  Troy  v.  Cheshire  R.  Co.,  23 
N.  H.  83  (extent  of  recovery  in  dam- 
ages where  injury  of  permanent  char- 
acter or  temporary,  uncertain  or  con- 
tingent) ;  Holsman  v.  Boiling  Spring 
Bleaching  Co.,  14  N.  J.  Eq.  335 
(right  to  injunction  where  nuisance 
long  continued  or  constantly  recur- 
ring) ;  City  of  Mansfield  v.  Hunt,  19 
Ohio  Cir.  Ct.  R.  488,  10  O.  C.  D.  567 
(distinction  as  to  damages  in  cases 
where  injury  permanent  and  where 
it  may  be  removed)  ;  Toledo  v.  Lewis, 
9  Ohio  Cir.  Dec.  451,  456  (distinction 
should  be  taken  between  permanent 
injuries  and  those  not)  ;  Umscheid 
v.  City  of  San  Antonio,  Tex.  Civ. 
App.  1902,  69  S.  W.  496,  5  Tex.  Ct. 
Rep.  562  (when  recovery  may  be  had 
for  permanent  or  temporary  injury; 
also,  action  for  permanent  injury 
should  be  for  entire  damages)  ;  City 
of   San  Antonio  v.  Mackey's  Estate, 


40 


Classification,  Nature  and  Character. 


§24 


exist  where  the  injury  is  occasional  and  not  constant  or  con- 
tinuous.65 So  noise  may  constitute  such  a  nuisance  that  it  will  be 
restrained  when  the  acts  producing  it  are  done  twice  a  week  for 
several  hours  continuously  within  a  short  distance  of  a  dwelling 
house.66     Again,  a  nuisance  caused  by  smoke,  cinders,  or  noise,  or 


22  Tex.  Civ.  App.  145,  54  S.  W.  33 
(damages  where  injury  not  perma- 
nent) ;  Baltimore  &  Potomac  R.  Co. 
v.  Fifth  Baptist  Church,  108  U.  S. 
317,  27  L.  Ed.  739,  2  Sup.  Ct.  719 
(equity  will  restrain  continuous  in- 
jury or  annoyance)  ;  Goldsmid  v. 
Tunbridge  Wells  Improvement  Com- 
missioners, 35  C.  J.  Ch.  382,  384,  12 
Jur.  N.  S.  308,  14  W.  R.  562,  L.  R. 
1  Ch.  349,  11  L.  T.  154  (the  court 
ought  not  to  interfere  in  cases  in 
which  the  injury  is  merely  tempo- 
rary and  trifling,  but  ought  to  do  so 
where  the  injury  is  permanent  and 
serious,  per  Lord  Justice  Turner). 
See  Appeal  of  Stewart,  56  Pa.  413 
(remedy  at  law  for  a  single  trespass, 
etc.,  and  equity  for  constantly  recur- 
ring trespass)  ;  Nashville  v.  Comar, 
88  Tenn.  415,  12  S.  W.  1027,  7  L.  R. 
A.  465.  Examine  generally  Ottenot 
v.  New  York,  Lackawanna  &  Western 
R.  Co.,  119  N.  Y.  603,  1  Silv.  C.  A. 
469,  28  N.  Y.  St.  R.  483,  23  N.  E. 
169. 

65.  Meigs  v.  Lister,  23  N.  J.  Eq. 
199,  205  (cited  in  Evans  v.  Reading 
Chemical  Fertilizing  Co.  Ltd.,  160 
Pa.  209,  227,  28  Atl.  702);  Ross 
v.  Butler,  19  N.  J.  Eq.  294,  97  Am. 
Dec.  654;  Campbell  v.  Seaman,  63  N. 
Y.  568,  20  Am.  Rep.  567.  See  Den- 
nis v.  Eckhardt,  3  Grant's  Cas.  (Pa.) 
390,  392,  per  Thompson,  J.  Compare 
Fay  v.  Whitman,  100  Mass.  76  (In- 
struction "3"  pp.  77,  78);  Cooke  v. 
Forbes,  L.  R.  5  Eq.  Cas.  166,  37  L. 
J.  Ch.  178,  17  L.  T.  371. 


If  the  damage  is  small  and  the  in- 
jury only  occasional  rather  than  a 
probable  and  necessary  consequence 
equitable  relief  will  be  denied.  Akens 
v.  Marsh,  19  App.  D.  C.  28,  43,  per 
Alvey,  C.  J. 

If  injury  occasional  or  temporary 
only  no  ground  for  injunction  exists 
except  in  extreme  cases.  Swaine  v. 
G.  N.  Ry.,  4  DeG.  J.  &  S.  211,  69 
Eng.  Ch.  Rep.  164  (*  211),  33  L.  J. 
Ch.  399,  3  N.  R.  399,  10  Jur.  N.  S. 
191,  9  L.  T.  745,  12  W.  R.  391. 

In  an  English  case  the  court  says: 
"  Again,  it  is  said  that  the  annoy 
ance  was  to  last  only  for  a  short  time. 
This  would  have  been  a  most  im- 
portant consideration  if  the  time  had 
only  been  a  few  days,  and  the  court 
will  be  more  strict  as  to  proof  in  case 
of  a  nuisance  only  lasting  eight 
weeks  than  in  a  case  of  a  permanent 
one.  .  .  .  The  plaintiff  cannot 
complain  of  the  temporary  crowding 
occasioned  by  people  going  to  the  cir- 
cus and  leaving  it."  This  case  was 
one  for  injunction  to  restrain  a  cir- 
cus performance  near  plaintiff's 
house,  and  a  distinction  was  made 
between  crowds  and  noise.  Inchbald 
v.  Robinson;  Same  v.  Barrington,  L. 
R.  4  Ch.  388,  20  L.  T.  259,  17  W.  R. 
459. 

66.  Walker  v.  Brewster,  L.  R.  5 
Eq.  Cas.  25.  See  Attorney-General  v. 
The  Sheffield  Gas  Consumers  Co.,  19 
Eng.  L.  &  Eq.  Rep.  639,  651,  17  Jur. 
677,  22  L.  J.  Rep.  N.  S.  Ch.  811,  per 


41 


§   2  1  CLASSIFICATION,    NATURE    AND    CHARACTER. 

offensive  odors,  may  possibly  occur  so  seldom  that  it  will  not  be 
held  to  produce  material  discomfort.  Where  the  occurrence 
is  only  accidental,  recurring  only  a  few  times  a  year 
and  not  intended  to  be  again  permitted,  it  may  not  be 
a  ground  for  an  injunction,  but  only  for  a  remedy  in  dam- 
ages. But  a  clear  and  unmistakable  nuisance,  which  it  is  intended 
to  commit  periodically,  will  not  be  permitted  because  it  does  not 
exist  the  greater  portion  of  the  time,  but  only  for  a  small  portion 
of  it  It  is  no  justification  to  a  wrong  doer  that  he  takes  away 
only  a  fractional  part  of  his  neighbor's  property,  comfort  or  life.67 
It  is  also  said  that  a  presumption  exists  that  a  nuisance  is  of  a 
transitory  or  temporary  character,  where  it  grows  out  of  acts  which 
the  law  has  not  authorized  and  because  a  legal  mode  exists  whereby 
it  may  be  removed  or  abated.68 

The    Lord    Chancellor    in    argument  68.  Neitzy   v.    Baltimore   &   Poto- 

only   "by  way   of   illustration."  mac  R.  Co.,  5  Mackey  (D.  C.)",  34,  3 

67.  Ross  v.   Butler,   19  N.   J.  Eq.  Cent.  R.  773. 
294,  302,  97  Am.  Dec.  654. 


'42 


CHAPTER  III. 

Essentials — Fundamental  and  General  Principles. 

Section  25.  Fundamental  governing  principles  generally. 

26.  Property    rights   generally — Luxuries — Delicate    nature   of   prop- 

erty. 

27.  Sic  utere  tuo  ut  alienum  non  laedas. 

28.  Sic  utere,  etc.,  continued — Control  of  use  of  property. 

29.  Sic  utere,  etc.,  Maxim  to  be  applied  with  caution. 

30.  Natural  right  to  use  of  property  and  right  to  artificial  use. 

31.  Right  to  reasonably  improve  property. 

32.  Damnum  absque  injuria. 

33.  Lawful    or     unauthorized,    reasonable    or    unreasonable    use    of 

property. 

34.  Lawful    or    unauthorized,    reasonable    or    unreasonable    use    of 

property. — Continued. 

35.  Lawful     or    unauthorized,    reasonable    or    unreasonable    use    of 

property. — Conclusion. 

36.  Easements  of  light  and  air — Prospect — General  doctrine. 

37.  Doctrine   of  easements   of   light  and   air   applied  to  nuisances — 

Easements  of  view. 

38.  Rights  to  pure  and  fresh  air. 

39.  Extent  and  character  of  injury  and  damage — Generally. 

40.  Impairment  of,  or  diminution  in  value  of  property. 

41.  Depreciation  in  or  diminished  rental  value. 

42.  No  distinction  of  classes. 

43.  Rule   that  motive   or   intent   unimportant   and  exceptions   to  or 

qualifications  thereof. 

44.  Negligence — Care,  reasonable  care  or  precaution,  or  want  thereof. 

45.  Contributory    negligence — Prevention    of    injury    or    damage    by 

plaintiff. 

46.  Same  subject  continued — Qualifications  and  exceptions. 

47.  Contributory     negligence — Maintenance     of     another     nuisance — 

Other  or  additional   damage  of  same  character  by  one's  own 
acts. 

48.  Neglect  to  abate  nuisance — Omission  of  duty. 

49.  Effect  of   locating  near  existing  nuisance. 

§  25.  Fundamental  governing  principles  generally. — The  fol- 
lowing general  underlying  principles  govern  the  doctrine  of  nui- 
sances and  the  remedy :     Every  person  is  entitled,  in  some  degree 

43 


§  26  Fundamental  and  General  Principles. 

at  least,  to  the  enjoyment  of  certain  private  rights,  whether  they 
are  personal  or  property  rights  or  both,  and  also  to  the  enjoyment 
of  certain  public  rights,  and  when  such  rights  clearly  exist,  or  are 
vested,  there  ought  not  to  be  an  unlawful  or  unreasonable  violation 
or  infringement  thereof  which  will  work  a  material  injury 
or  damage  to  the  person  or  persons  in  whom  they  exist  or  are 
vested  either  individually,  as  a.  private  citizen,  or  collectively ;  nor 
should  there  be  an  omission  to  perform  a  duty,  which  one  is  legally 
obligated  to  perform,  which  will  cause  another  such  material 
injury  or  damage.  These  principles  run  through  all  the  de- 
cisions. 

§  26.  Property  rights  generally — Luxuries — Delicate  nature 
of  property. — A  person  has  the  right  not  only  to  have  his  property 
protected  from  wrongful  injury  but  also  the  right  to  be  protected 
in  its  lawful  enjoyment.  The  alleged  nuisance  may  work  a  house 
no  material  injury  and  yet  be  of  such  a  character  as  to  render  it 
impossible  for  the  owner  to  live  in  it  with  comfort,  therefore  an 
injury  need  not  be  proven  both  to  the  property  itself  and  also  an 
interference  with  its  enjoyment.1  And  although  an  act  may  be  in 
itself  lawful  yet  if  it  is  done  in  a  particular  place  and  so  neces- 
sarily tends  to  the  injury  and  damage  of  another's  property  it 
constitutes  a  nuisance.2  Articles  of  luxury  are  also  so  much  under 
the  protection  of  the  law  as  those  of  necessity.3  So  a  noxious  trade 
producing  vapors  or  gases,  injurious  to  vegetable  life,  used  for 
ornamental  purposes  or  of  a  delicate  nature  or  otherwise,  may  con- 
stitute a  nuisance,4  provided  the  injury  is  visible,  actual  and  sub- 
stantial.5    But  the  doing  of  something  not  in  itself  noxious  does 

1.  Owen  v.    Phillips,   73   Ind.    284,      bent    v.    The    Imperial    Gas    Co.,    7 
293,  294.  DeG.  M.  &  G.  436,  56  Eng.  Ch.  Rep. 

2.  Cooper   v.   Birge,  9  Ga.  425,  54       337    (*  434),  26  L.  J.  Ch.  276,  5   W. 
Am.   Dec.   347.  R-  272,  3  Jur.  N.  S.  221 ;     Saville  v. 

3.  Campbell   v.   Seaman,   63   N.  Y.       Kilner,   26    Law   T.    N.    S.    277,   279. 
568,  20  Am.  Rep.  567.  See  §§  135  et  seq.  herein  as  to  noxious 

4.  Georgia    Chemical,    etc.,    Co.  v.      vapors. 

Colquitt,    72    Ga.    172;    Campbell    v.  5.  Salvin     v.     North      Brancepeth 

Seaman,  63  N.  Y.  568,  20  Am.  Rep.       Coal  Co.,  44  L.  J.  Ch.  149,  31  L.  T. 
567 ;  Imperial  Gas  Light  &  Coke  Co.      N.  S.  154,  L.  R.  8  Ch.  705,  22  W.  R. 
v.  Broadbent,  7  H.  L.  Cas.  600,  5  Jur.      904.     See  §§  20-22  herein. 
N.  S.  1319,  29  L.  J.  Ch.  377;   Broad- 

44 


Fundamental  and  General  Principles.  §  27 

not  become  a  nuisance  merely  because  it  does  harm  to  some  par- 
ticular trade  of  a  delicate  nature  in  the  adjoining  property  where 
it  does  not  affect  any  ordinary  trade  carried  on  there  nor  interfere 
with  the  ordinary  enjoyment  of  life.  A  man  who  carries  on  an 
exceptionally  delicate  trade  cannot  complain  because  it  is  injured 
by  his  neighbor  doing  something  lawful  on  his  property,  if  it  is 
something  which  would  not  injure  an  ordinary  trade  or  any- 
thing but  an  exceptionally  delicate  trade.6 

§  27.  Sic  utere  tuo  ut  alienum  non  laedas. —  The  maxim  that 
one  should  enjoy  or  use  his  own  property  so  as  not  to  injure  that 
of  another,  or  the  rights,  of  another,7  is  a  principle  of  extensive 
application  in  the  law  of  nuisance.  It  is  a  sound  as  well  as  an 
ancient  maxim  of  the  law.  It  is  an  established  rule  as  old  as  the 
common  law  itself  and  is  supported  by  the  soundest  wisdom.  It 
may  be  extended  in  its  meaning  to  the  rule  that  one  should  not  so 
use  his  property  as  to  work  harm  or  annoyance  to  another  or  use 
it  in  such  manner  as  to  infringe  upon  the  rights  of  others,  as  for 
instance,  one  should  not  generally  erect  structures  in  such  close 
proximity  to  his  neighbors'  dwelling  house  which  are  of  such  a 
character  as  to  render  it  unfit  for  habitation.  But  the  injury  con- 
templated is  a  legal  injury,  an  invasion  of  some  legal  right,  such  as 
erecting  a  building,  or  carrying  on  a  business  on  one's  own  land, 
or  removing  the  soil,  or  placing  something  on  the  soil  of  another, 
which  so  hinders,  interferes  with,  or  obstructs  the  enjoyment  by 
another  of  his  property  as  amounts  to  a  nuisance.8  Again,  it  is  an 
implied  obligation  on  the  part  of  every  citizen  that  he  holds  his 
property  and  will  use  it  subject  to  the  rights  of  others  to  enjoy  the 
use  of  their  own  property,  since  the  ownership  of  property  will 

6.  Robinson    v.    Kilvert,    58    L.    J.  nuisance  to  his  trade  to  say  that  the 

Ch.  392,  41  Ch.  D.  88,  94,  96,  97,  61  injury   is  felt  only  by  reason  of  the 

L.    T.   GO,   37   W.   R.    545,   criticising  delicate     nature     of     the     manufac- 

head  note  in  Cooke  v.  Forbes,  37  L.  ture"). 

,T.  Ch.  178,  L.  R.  5  Eq.  166,  17  L.  T.  7.  Broom's  Leg.  Max.    (7th  Amer. 
371    (as   going   further   than   is  war-  ed.,  1874),  p.  364,  *  366 — *  395. 
ranted   by   the   case,   said   head   note  8.  Haydon  v.   Tucker,  37  Mo.  214, 
being  this:     "It    is   no   answer   to    a  221,  per  Wagner,  J.;  Pickard  v.  Col- 
complaint,  by   a  manufacturer,   of  a  lins,  23  Barb.    (N.  Y.),  444,  458. 

45 


27 


Fundamental  and  General  Principles. 


not  justify  the  use  of  it9  in  such  a  way  as  to  distress  and  physically 
annoy  others.10  So,  under  the  Louisiana  law,  although  a  proprie- 
tor may  do  with  his  estate  what  he  pleases,  still  he  cannot  make 
any  work  on  it  which  may  deprive  his  neighbor  of  the  liberty  of 
enjoying  his  own,  or  which  may  be  cause  of  damage  to  him  ;u  and 
if  a  person  brings,  or  accumulates,  on  his  land  anything  which,  if 
it  should  escape,  may  cause  damage  to  his  neighbor  he  does  so  at 
his  peril  and  is  responsible,  although  he  may  have  taken  care  and 
precaution  to  prevent  the  damage,12  In  a  West  Virginia  case  it  is 
said  that  the  law  of  nuisance:  "  Is  founded  on  what  we  call  the 
absolute  rights  of  liberty  and  property.  Each  man  has  the  right 
to  that  which  he  has  made  his  own  and  without  control  or  diminu- 
tion, save  by  the  laws  of  the  land.  If  each  has  it,  all  have  it ;  so 
that  it  follows  from  this  that  each  one  must  so  use  his  property  and 
rights  as  not  to  injure  those  of  others.  Each  has  his  right  for  him- 
self, and  owes  a  corresponding  duty  to  the  other."  13 


9.  State  v.  Yopp,  97  N.  C.  477,  2 
S.  E.  458,  2  Am.  St.  Rep.  305. 

10.  Sparhawk  v.  Union  Pass.  Ry. 
Co.,  54   Pa.  401,  429. 

11.  Wilson  v.  Great  Southern 
Teleph.  &  Teleg.  Co.,  41  La.  Ann. 
1041,  1046,  6  So.  781,  citing  R.  C 
Code,  667,  505. 

12.  Wilson  v.  City  of  New  Bed- 
ford, 108  Mass.  261,  266,  11  Am.  Rep. 
352;  Rylands  v.  Fletcher,  Law  Rep. 
3  H.  L.  330,  340,  per  Lord  Cran- 
worth,  case  affirms  Fletcher  v.  Ry- 
lands, 1  Exch.  265,  which  (at  p. 
280),  is  criticised  in  Pennsylvania 
Coal  Co.  v.  Sanderson,  113  Pa.  126, 
150,    152,    57    Am.    Rep.    445,    6    Atl. 

453.    See  §§  382  et  seq.  herein. 

See,  also,  Kinnaird  v.  Standard  Oil 
Co.,  89  Ky.  468,  ll  Ky.  L.  Rep.  692, 
7  L.  R.  A.  451,  30  Cent.  L.  J.  267, 
12  S.  W.  937,  41  Aib.  L.  J.  227. 

13.  Powell  v.  Bentley  &  Gerwig 
Fur.  Co.,  34  W.  Va.  804,  807,  12  L. 
R.  A.  53,  12  S.  E.  1085,  per  Holt,  J. 


See,  further,  as  to  the  maxim  sic 
utere,  etc.  Grady  v.  Wolsner,  46 
Ala.  381,  382,  7  Am.  Rep.  593,  per 
Sanford,  J.;  Hoadley  v.  Seward  & 
Son  Co.,  71  Conn.  640,  646,  42  Atl. 
997  per  Andrews,  C.  J. ;  Bonner  v. 
Welborn,  7  Ga.  296,  311,  per  Nisbett, 
J.;  Barnes  v.  Hathorn,  54  Me.  124, 
per  Hunt,  J.;  Gerrish  v.  Proprietors 
of  Union  Wharf,  26  Me.  (13  Shep.), 
384,  392,  46  Am.  Dec.  568,  per  Shep- 
ley.  J.;  Scott  v.  Bay,  3  Md.  431; 
Wesson  v.  Washburn  Iron  Co.,  13 
Allen  (Mass.),  95,  104,  90  Am.  Dec. 
181,  per  Bigelow,  C.  J.;  Ross  v.  But- 
ler, 19  N.  J.  Eq.  294,  304,  97  Am. 
Dec.  654;  Bohan  v.  Port  Jervis  Gas 
Light  Co.,  122  N.  Y.  18,  24,  25  N.  E. 
246,  33  N.  Y.  St.  R.  246,  9  L.  R.  A. 
711  and  note,  per  Brown,  J.;  Fish  v. 
Dodge,  4  Denio  (N.  Y.),  311,  316,  per 
Bronson,  Ch.  J.;  Radcliff  v.  Mayor, 
etc.,  of  Brooklyn,  4  X.  Y.  ( 4  Comst. ) , 
195,  198  et  seq.,  53  Am.  Dec.  357,  per 
Bronson,   C.  J.;   Yocum   v.   Hotel   St. 


46 


Fundamental  and  Genebal  Peinciples.       §§  28,  29 

§  28.  Sic  utere,  etc.,  continued — Control  of  use  of  property. 
— The  maxim  sic  utere,  etc.,  has  been  extended,  so  that,  under  this 
general  principle  of  the  common  law,  one  who  owns  property  is 
obligated  to  control  the  use  thereof  so  as  not  to  produce  injury  to 
others;  and  if  another  is  permitted  by  such  owner  to  place  the 
latter's  premises  in  such  a  situation,  or  to  use  them  in  such  a  way 
as  to  cause  injury  to  another  the  owner  may  be  held  liable  there*- 
for.14  But  a  person  can  have  no  action  for  annoyance  and  hurt 
which  he  has  sustained  from  acts  of  third  persons',  done  on  land 
adjoining  his  own,  which  the  proprietor  thereof  might  lawfully 
have  done  in  the  exercise  of  his  dominion  over  his  own  property.13 
So  it  is  also  said  that  merely  permitting  another  to  commit  a  nui- 
sance does  not  render  one  lible  for  its  consequences.1' 

§  29.  Sic  utere,  etc. — Maxim  to  be  applied  with  caution. 
Great  caution  should  be  exercised  in  determining  to  what  extent 
the  restriction  embodied  in  the  maxim  sic  utere,  etc.,  should  be 
applied  and  in  controlling  one  in  the  use  and  enjoyment  of  his 
property,  and  in  holding  him  liable  for  injury  or  damage  which 
another  may  sustain  by  such  use  and  enjoyment,  for  the  varying 
circumstances  of  each  particular  case  are  most  important  factors.17 
This  rule  applies  not  only  to  cases  of  liability  in  general,  but  also 
to  the  law  of  nuisances.  A  nuisance  does  not  necessarily  exist 
even  though  one  may  by  the  use  of  his  own  property  cause  an 
injury  or  damage  to  another.  The  case  may  be  one  known  as 
damnum  absque  injuria,  and  the  factors  of  locality,  of  unauthor- 
ized, or  unreasonable  use  are  of  weight.18 

George  Co.,   18  Abb.  N.  C.    (N.  Y.),  15.  McLauchlin  v.  Charlotte  &  So. 

340,  341,  per  Brown,  J.;   Campbell  v.  Car.  R.  Co.,  5  Rich.  Law    (27  S.  C), 

Seaman,  2  T.  &  C.   (N.  Y.),  231,  233-  583. 

235,   per   P.   Potter,   J.;   Crawford   v.  16.  Langabough  v.  Anderson,  Ohio, 

Atglen  Axle  &  Iron  Mfg.  Co.,  1  Chest.  67  N.  E.  28G,  14  Am.  Neg.  Rep.  170, 

Co.  Rep.    (Pa.),  412,  per  Clayton,  P.  181. 

J.;  Tipping   v.    St.   Helen's   Smelting  17.  See     generally     Broom's     Leg. 

Co.,  11  H.  L.  C.  042,  116  Eng.  C.  L.  Max.    (7th   Amer.    ed.,    1S74),   *    372 

1093,  11  H.  L.  Cas.  full  reprint,  1483.  et  seq. 

14.  Gardner  v.  Heartt,  2  Barb.  (N.  18.  See  Bliss  v.  Grayson,  24  Xev. 

Y.),    165,   168,    per   Harris,   J.      See,  422,  454,  455,  56  Pac.  231,  per  Mas- 

however,   sections  herein  as  to  land-  sey,   J.,   citing   1   Wood   on   Nuis.,   p. 

lord  and  tenant.  3    ( §  2 ) .     Bohan  v.  Port  Jervis  Gaa 

47 


§  30  Fundamental  and  General  Principles. 

§  30.  Natural  right  to  use  of  property  and  right  to  artificial 
use. — "  Sic  utere  tuo  ut  alienum  non  laedas,  is  a  maxim  well 
known  to  our  law ;  but  the  propriety  of  applying  this  maxim  to  a 
particular  case  sometimes  becomes  a  question  of  great  doubt,  from 
the  difficulty  of  determining  what  is  legal  injury  to  the  property 
of  another.  The  erection  of  a  new  mill,  in  the  immediate  vicinity 
of  one  which  had  previously  been  erected  by  another  person,  might 
in  fact  destroy  a  moiety  of  the  value  of  his  mill.  Yet  this  maxim 
could  not  properly  be  applied  to  such  a  case.  The  owner  of  the 
first  mill  sustains  no  legal  damage,  because  at  the  time  he  erected 
it  he  knew  his  neighbor  had  a  legal  right  to  make  a  similar  im- 
provement on  his  own  premises,  of  which  he  could  not  deprive  him 
by  the  previous  erection.  But  if  the  first  mill  was  supplied  by  a 
stream  of  water  which  had  been  accustomed  from  time  immemorial 
to  flow  in  a  particular  channel,  the  owner  of  the  second  mill  could 
not  divert  the  stream  from  its  accustomed  channel,  although  done, 
on  his  own  land,  so  as  to  deprive  the  first  mill  of  its  necessary 
supply  of  wafer.  The  diverting  of  the  water  in  such  a  case  would 
be  a  legal  injury  to  the  owner  of  the  first  mill ;  because  it  would 
deprive  him  of  the  natural  right,  which  was  paramount  to  the 
right  of  his  neighbor,  to  an  artificial  use  of  water.  .  .  .  The 
same  principles  appear  to  have  been  applied  to  injuries  arising  to 
the  owner  of  the  lot  by  the  artificial  use  of  an  adjacent  lot  by  its 
owner.  I  have  a  natural  right  to  the  us©  of  my  land  in  the  situa- 
tion in  which  it  was  placed  by  nature,  surrounded  and  protected 
by  the  soil  of  adjacent  lots.  And  the  owners  of  those  lots  will  not 
be  permitted  to  destroy  my  land  by  removing  this  natural  support 
or  barrier.  Thus  it  is  laid  down  by  Rolle,  that  I  may  sustain  an 
action  against  a  man  who  digs  a  pit  on  his  own  land  so  near  to  my 
lot  that  my  land  falls  into  his  pit.19  But  my  neighbor  has  a  right  to 
dig  a  pit  upon  his  own  land,  if  necessary  to  its  convenient  or  bene- 
ficial use,  when  it  can  be  done  without  injury  to  my  land  in  its 
natural  state."  20 

Light  Co.,  122  N.  Y.  18,  33,  25  N.  E.  1874),  p.  196  *  197,  et  seq.,  §  32  here- 

246,  9  L.  R.  A.  711,  33  N.  Y.  St.  R.  in.     As  to  lawful,  etc.,  use,  see  §§  33- 

246,    per    Haight,    J.,    in    dissenting  35  herein. 

opinion.  19-  Citing  2  Rol.  Abr.  565,  1,  10. 

As  to  damnum  absque  injuria,  see  20.  Lasala  v.   Holbrook,   4  Paige's 

Broom's  Leg.  Max.    (7th   Amer.    ed.,  Ch.    (N.  Y.),   169,    171,   172,  25  Am. 


Dec.  524. 


48 


Fundamental  and  General  Principles.       §§  31,  32 

§  31.  Right  to  reasonably  improve  property.— A  person  has 
the  right  to  make  reasonable  improvements  on  his  own  premises 
where  the  owner  of  adjacent  premises  does  not  possess  any  special 
privileges,  protecting  him  from  the  consequences,  either  by  pre- 
scription or  by  grant  from  the  person  making  the  improvement, 
or  from  those  under  whom  he  claims  title.21  A  man  has  also  the 
right  to  improve  his  own  property  in  any  way  he  sees  fit  providing 
the  improvement  is  not  such  a  one  as  the  law  will  pronounce  a  nui- 
sance and  the  size  and  quality  of  the  improvement  never  of  them- 
selves constitute  it  a  nuisance,  if  the  improvement  itself  is  legiti- 
mate, and  lawful  and  not  per  se  a  nuisance.  And  an  improvement 
which  is  not  a  nuisance,  and  which  does  not  endanger  the  physical 
health  and  comfort  of  a  neighbor  will  not  be  restrained  on  the 
ground  that  it  is  annoying  and  disagreeable  to  such  neighbor,  or 
because  it  does  not  correspond  in  kind  and  character  with  improve- 
ments on  such  neighbors'  premises  or  because  it  would  bring  a 
different  class  of  people  socially  into  immediate  proximity  with 
the  neighbor.22  The  principles  above  considered  under  the  maxim 
sic  utere,  etc.,  reasonable  or  unreasonable,  lawful  or  unauthorized 
use  of  property,  and  also  the  question  of  damnum  absque  injuria, 
are  also  applicable  as  to  improvements. 

§  32.  Damnum  absque  injuria.23 — Every  man  is  entitled 
to  the  ordinary  and  natural  use  and  enjoyment  of  his 
own  property,  and  if  whilst  lawfully  in  such  use  and 
enjoyment,  without  negligence  or  malice  on  his  part,  an  un- 
avoidable loss  occurs  to  his  neighbors,  it  is  damnum  absque  injuria, 
for  the  rightful  use  of  one's  own  land  may  cause  damage  to  an- 
other, without  any  legal  wrong.24  So  a  man  may  do  many  things 
under  a  lawful  authority,  or  in  his  own  land,  which  may  result 
in  an  injury  to  the  property  of  others,  without  being  answcrablo 
for  the  consequences.  Indeed  an  act  done  under  lawful  authority, 
if  done  in  a  proper  manner,  can  never  subject  the  party  to  an 
action  whatever  consequences  may  follow.     A  man  may  enjoy  his 

21.  Lasala  v.  Holbrook,  4   Paige's  23.  See,  also,   §§  24,  27-29,  herein. 
Ch.   (N.  Y.),  169,  25  Am.  Dec.  524.  24.       Pennsylvania     Coal     Co.     v. 

22.  Falloon   v.   Schilling,   29   Kan.  Sanderson,   113  Pa.  126,  146,  57  Am. 
207,  44  Am.  Rep.  642.  Rep.  445,  6  Atl.  453,  per  Clark,  J. 

49 


§  32  Fundamental  and  General  Principles. 

land  in  the  way  such  property  is  usually  enjoyed,  without  being 
answerable  for  the  indirect  or  consequential  damages  which  may  be 
sustained  by  an  adjoining  landowner.25  It  follows  that  the  maxim 
sic  utere,  etc.,  is  undoubtedly  to  be  so  limited  in  its  application  as 
not  to  restrain  the  owner  of  property  from  a  prudent  and  reason- 
able exercise  of  his  right  of  dominion.  If  in  the  exercise  of  his 
right,  another  sustains  damage  it  is  damnum,  absque  injuria,26  for 
in  the  matter  of  things  and  society,  it  is  not  reasonable  that  every 
annoyance  should  constitute  an  injury  such  as  the  law  will  remedy 
or  prevent.  One  may  therefore  make  a  reasonable  use  of  his  right, 
though  it  may  create  some  annoyance  or  inconvenience  to  his 
neighbor.  But  even  in  such  case,  an  annoyance  lawful  in  itself 
may  become  unlawful  when  done  maliciously.27  The  rightful  use 
of  one's  own  estate  may  not  infrequently  have  some  effect  to  dimin- 
ish the  value  of  an  adjoining  estate  or  to  prevent  its  being  used 
with  the  comfort  which  might  have  been  otherwise  anticipated. 
This,  however,  is  damnum  absque  injuria,  for  which  the  law  does 
not  and  cannot  make  compensation.28  In  a  Xevada  case  it  is  said : 
"  Every  person  has  the  reasonable  enjoyment  of  his  own  property, 
and  so  long  as  the  use  to  which  he  devotes  it  violates  no  rights  of 
another,  however  much  damage  others  may  sustain  therefrom,  his 
use  is  lawful."  29  And  in  a  New  York  case  the  court  says :  "  The 
wants  of  mankind  demand  that  property  be  put  to  many  and 
various  uses  and  employments,  and  one  may  have  upon  his  prop- 
erty any  kind  of  lawful  business,  and  so  long  as  it  is  not  a  nui- 
sance, and  is  not  managed  so  as  to  become  such,  he  is  not  responsi- 
ble for  any  damage  that  his  neighbor  accidentally  and  unavoid- 
ably sustains.      Such  losses  the  law  regards   as  damnum  absque 

25.  Radcliff's  Exctrs.  v.  Mayor,  Union  Wharf,  13  Shep.  (26  Me.),  384, 
etc.,  of  Brooklyn,  4  N.  Y.  (4  Comst.),  392,  46  Am.  Dec.  568,  per  Shepley,  J. 
195,  200,  203,  53  Am.  Dec.  357,  per  29.  Bliss  v.  Grayson,  24  Nev.  422, 
Bronson,  C.  J.  454,  455,  56  Pac.  231,  per  Massey,  J.. 

26.  Gardner   v.     Heartt,     2     Barb.  citing  1  Wood  on  Nuis.,  p.  3. 

(N.  Y.),  165,  168,  per  Harris,  J.  See,  also,  same  words  in  Bohan  v. 

27.  Powell  v.  Bentley  &  Gerwig  Port  Jervis  Gas  Light  Co.,  122  N.  Y. 
Fur.  Co.,  34  W.  Va.  804,  809,  12  L.  18,  33,  25  N.  E.  246,  9  L.  R.  A.  711, 
R.  A.  53,  12  S.  E.  1085,  per  Holt,  J.  33  N.  Y.  St.  R.  246,  per  Haight,  J., 

28.  Gerrish      v.      Proprietors      of  in  dissenting  opinion. 


50 


Fundamental,  and  General  Principles.  §  33 

injuria.  30  Again,  an  allegation  in  a  bill  that  the  erection  and 
operation  of  a  brewery  or  the  business  carried  on  there  would 
result  in  the  transportation,  over  tracks  of  a  street  railway  com- 
pany, of  a  largely  increased  quantity  of  merchandise  past  plain- 
tiff's residence,  said  company  being  licensed  to  carry  freight,  was 
held  to  be  the  ground  of  demurrer  and  without  force  as  the  addi- 
tional annoyance  to  persons  residing  on  the  line  would  clearly  be 
damnum  absque  injuria.31 

§  33.  Lawful  or  unauthorized,  reasonable  or  unreasonable  use 
of  property.32 — In  determining  whether  or  not  a  nuisance  exists 
by  reason  of  the  use  of  one's  own  property  to  the  injury  or  damage 
of  another  the  unauthorized,  unreasonable  uses  thereof  are  mate- 
rial factors.  Prima  facie  a  person  may  enjoy  and  use  his  own 
property  as"  he  chooses,  but  this  is  subject  to  the  restrictions  em- 
bodied in  the  maxim  sic  utere,  etc.,  and  such  enjoyment  and  use 
must  be  lawful  and  reasonable  and  not  unauthorized  or  unreason- 
able. The  general  principle  that  one  cannot  recover  for  lawful 
acts  done  by  another  on  his  own  property  without  negligence  and 
without  malice  is  well  founded  in  law.  So  long  as  the  use  to  which 
one  chooses  to  devote  his  own  property  violates  no  rights  of  others 
he  is  not  liable,  33  and  generally  a  person  ought  not  to  recover  dam- 
ages resulting  to  his  own  land  from  the  lawful  and  reasonable  use 
by  another  of  his  own  adjoining  land.34  But  the  use  must  be  rea- 
sonable having  in  view  others'  rights.35  So,  if  one  cultivates  his 
land  in  the  usual,  ordinary  and  reasonable  way,  equity  ought  not 
to  restrain  him  in  such  use  whether  his  land  is  on  a  plain  or  so 
elevated  above  that  of  his  neighbor's  as  to  cause  the  soil  to  was*h 

30.  Bohan  v.  Port  Jervis  Gas  See,  also,  Bliss  v.  Grayson,  24  Nev. 
Light  Co.,  122  N.  Y.  18,  25,  25  N.  E.  422,  455,  56  Pac.  231,  per  Massey,  J.; 
24G,  9  L.  R.  A.  711,  33  N.  Y.  St.  R.  Campbell  v.  Seaman,  63  N.  Y.  568, 
246,  per  Brown,  J.  577. 

31.  O'Reilly  v.  Perkins,  22  R.  I.  34.  Quinn  V.  Chicago,  Burlington 
364,  48  Atl.  6.  &   Quincy    R.   Co.,   63   Iowa,   510,    19 

32.  See  §§  26-29,  32,  herein.  N.  W.  336. 

33.  Bohan  v.  Port  Jervis  Gas  35.  Hurlburt  v.  McKone,  55  Conn. 
Light  Co.,  122  N.  Y.  18,  25,  33,  25  N.  31,  42,  10  Atl.  164,  4  N.  Eng.  81.  3 
E.  246,  9  L.  R.  A.  711,  33  N.  Y.  St  Am.  St.  Rep.  17. 

R.     246,     per     Brown,     J.,     and     per 
Haight,  J.,   in   dissenting  opinion. 

51 


§  33  Fundamental  and  General  Principles. 

down  and  injure  the  latter's  property.36  Many  circumstances  may 
conspire  to  determine  what  is  a  proper  use  of  one's  own  property. 
Some  things  are  unlawful  or  nuisances  per  se;  others  because  so 
only  in  respect'  to  the  time,  place  and  manner  of  their  performance. 
A  person  ought  to  know,  when  he  erects  a  building  or  other  struc- 
ture upon  his  premises,  what  effect  the  use  thereof  -will  produce 
upon  adjoining  buildings  and  their  inmates';  he  must,  therefore, 
be  presumed  to  have  intended  that  which  he  might  reasonably  sup- 
pose would  result.  If,  in  view  of  such  knowledge,  it  is  not  reason- 
able that  an  erection  should  be  located  so  near  a  dwelling  house 
of  another  as  to  seriously  injure  the  occupants,  then  it  cannot  be 
said  that  the  business  carried  on  therein  is  or  was  reasonable  and 
lawful.37  To  live  comfortably  is  the  chief  and  most  reasonable 
object  in  the  acquirement  of  property  by  men,  so  that  any 
material  interference  with  one's  neighbor  in  the  comfortable  en- 
joyment of  life  is  a  wrong  which  should  be  redressed.38  The  first 
object  of  society  and  the  laws,  should  be  to  protect  life,  health  and 
property,  and  the  right  to  their  comfortable  enjoyment ;  and  from 
the  earliest  times  the  common  law  has  considered  them  paramount 
to  the  mere  convenience  of  doing  a  lawful  act,  or  pursuing  a  lawful 
calling,  in  a  particular  place,  so  that  whatever  essentially,  inju- 
riously and  necessarily  affects  life,  health  and  property  must  be  a 
wrong.39  Again,  the  maxim  sic  utere,  etc.,  is  not  of  universal  ap- 
plication ;  for,  as  a  general  rule,  the  man  who  exercises  proper  care 
and  skill  may  do  what  he  will  with  his  own  property.  He  may 
not,  however,  under  color  of  enjoying  his  own,  set  up  a  nuisance 
which  deprives  another  of  the  enjoyment  of  his  right.  A  man 
must  so  exercise  a  lawful  authority,  and  so  enjoy  his  own  property 
as  not  to  injure  that  of  another.40    So  it  is  said  in  a  Massachusetts 

36.  Middlesex  County  v.  McCue,  !See,  also,  Hurlburt  v.  McKone,  55 
149  Mass.  103,  21  N.  E.  230,  14  Am.  Conn.  31,  10  Atl.  164,  3  Am.  St.  Rep. 
St.  Rep.  402   (a  case  of  a  bill  to  re-      17,  4  N.  Eng.  81. 

strain      defendant      from     filling    up  39.  Whitney  v.     Bartholomew,    21 

plaintiff's   mill-pond).  Conn.  213,  218,  per  Church,  Ch.  J. 

37.  Whitney  v.  Bartholomew.  21  40.  Radcliff's  Exctrs.  v.  Mayor, 
Conn.  213,  217,  219,  per  Church  etc.,  of  Brooklyn,  4  N.  Y.  (4  Comst.), 
Ch.  J.  195,  198,  per  Bronson,  Ch.  J. 

38.  Wahle  v.  Reinbach,  76  111.  32?, 
326,  327,   per  Scholfield,  J. 

52 


FUNDAMENTAL    AND    GENERAL    PRINCIPLES.  §  33 

case  that :  "  It  is  a  common  principle  of  the  civil  and  of  the  com- 
mon law,  that  the  proprietor  of  land,  unless  restrained  by  cove- 
nant or  custom,  has  the  entire  dominion,  not  only  of  the  soil,  but  of 
the  space  above  and  below  the  surface,  to  any  extent  he  may  choose 
to  occupy  it.  The  law,  founded  upon  principles  of  reason  and 
common  utility,  has"  admitted  a  qualification  to  this  dominion, 
restricting  the  proprietor  so  to  use  his  own,  as  not  to  injure  the 
property  or  impair  any  actual  existing  rights  of  another.  .  .  . 
But  this  subjection  of  the  use  of  a  man's  own  property  to  the  con- 
venience of  his  neighbor  is  founded  upon  a  supposed  pre-existing 
right  in  his  neighborhood  to  have  and  enjoy  the  privilege  which  by 
such  act  is  impaired ;  "  41  and  in  a  New  York  decision  it  is  de- 
clared that  a  person  must  not  use  his  own  property  so  as  to  injure 
another,  if  he  obviousiy  can,  with  reasonable  care,  and  without 
unreasonable  effort  or  expense  to  avoid  it.  "  The  question  is  one 
of  relative  obligation  or  duty,  and  the  violation  of  this  duty  is 
negligence."  42  So,  in  a  Maine  case,  the  court  says :  "  What  is  a 
nuisance  ?  In  considering  this  question  when  the  complaint  is 
based  upon  the  use  by  another  of  his  own  property,  we  are  first  met 
by  the  general  doctrine  of  the  right  of  every  man  to  regulate,  im- 
prove and  control  his  own  property ;  to  make  such  erections  as  his 
own  judgment,  taste  or  interest  may  suggest;  to  be  master  of  his 
own  without  dictation  or  interference  by  his  neighbors.  On  the 
other  hand,  we  meet  that  equally  well  established  and  exceedingly 
comprehensive  rule  of  the  common  law — '  sic  utere  tuo,  ut  alienum 
non  laedas ' — which  is  the  legal  application  of  the  gospel  rule  of 
doing  unto  others  as  we  would  that  they  should  do  unto  us.  The 
difficulty  is  in  drawing  the  line  in  particular  cases,  so  as  to  recog- 
nize and  enforce  both  rules  within  reasonable  limitations.  .  .  . 
No  man  is  at  liberty  to  use  his  own  without  any  reference  to  the 
health,  comfort  or  reasonable  enjoyment  of  like  public  or  private 
rights  by  another.     .     .     .     This  illegal,  unreasonable  and  justi- 

41.  Thurston  v.  Hancock,  12  Mass.  (N.  Y.),  352.  354,  17  N.  Y.  St.  R. 
220,  224,  7  Am.  Dec.  57n.,  per  Par-  461,  2  N.  Y.  Rupp.  94,  aff'd  132  N.  Y. 
ker,  C.  J.  602,  44  N.  Y.   St.  R.  934,  30  N.  E. 

42.  Dunsbach  v.  Hollister,  49  Hun  1152. 


53 


§34  Fundamental  and  Geneeal  Principles. 

fiablo  use  to  the  injury  of  another,  or  of  the  public,  the  law  de- 
nominates a  nuisance."  43 

§  34.  Lawful  or  unauthorized,  reasonable  or  unreasonable  use 
of  property  continued. — If  the  use  of  one's  own  property  is  un- 
authorized or  unreasonable  and  produces  a  tangible,  appreciable 
and  material  injury,  hurt,  annoyance,  inconvenience,  discomfort, 
or  damage  to  his  neighbor  or  others  it  constitutes  a  nuisance  for 
which  there  is*  a  liability  and  consequent  damage  in  the  law. 
What,  however,  is  a  reasonable  use  of  one's  own  property  cannot 
be  defined  by  any  precise  technical  rule  as  it  must  be  governed 
largely  by  the  circumstances  of  each  case,  having  in  view  the  loca- 
lity, the  character  or  kind  of  nuisance  charged,  and  of  the  act, 
trade,  business1,  etc.,  producing  it  and  various  other  facts.44  Under 
a  Pennsylvania  decision  it  is  said  that  a  man  is  to  be  protected  in 
the  enjoyment  of  his  property  against  all  unlawful  disturbances, 
if  he  does  not  by  such  enjoyment  invade  the  rights'  of  others  and  if 
he  disturbs  in  an  unreasonable  degree  the  quiet  enjoyment  of  a 
home  or  dwelling  house  it  constitutes  a  nuisance.40  The  following 
language  used  by  the  court  in  an  English  case  is  also  pertinent: 
"  In  Ball  v.  Ray,46  Lord  Selborne,  L.  C,  said :  .  .  .  '  If  houses  ad- 
joining are  so  built  that  from  the  commencement  of  their  existence 
it  is  manifest  that  each  adjoining  inhabitant  was  intended  to  enjoy 
his  own  property  for  the  ordinary  purposes  for  which  it  and  all 
the  different  parts  of  it  were  constructed,  then  so  long  as  the 
house  is  so  used  there  is  nothing  that  can  be  regarded  in  law  as  a 
nuisance  which  the  other  party  has  a  right  to  prevent.  But,  on  the 
other  hand,  if  either  party  turns  his  house,  or  any  portion  of  it, 
to  unusual  purposes  in  such  a  manner  as  to  produce  a  substantial 
injury  to  his  neighbour,  it  appears  to  me  that  that  is  not  according 

43.  Barnes  v.  Hathorn,  54  Me.  124,  St.  Helen's  Smelting  Co.  v.  Tipping, 
126,  per  Kent,  J.  See,  also,  dissent-  11  H.  L.  Cas.  642,  35  L.  J.  Q.  B.  66, 
ing   opinion,   id.,   p.    130.  13   W.   B.    1083,   12   Law  T.    776,    11 

44.  Hoadley  v.  Seward  &  Son  Co.,  Jur.  N.  S.  785. 

71    Conn.  640,  646,   42  Atl.   997,   per  45.  Wallace  v.    Auer,      10     Phila. 

Andrews,  C.  J.  (Pa.),   356-358,   per   Allison,   P.  J. 

See,  also,  Hurlburt  v.  McKone,  55  46.  L.  B.,  8  Ch.  467,  469. 

Conn.    31 ;    Campbell   v.    Seaman,    63 
N.  Y.  568,  576. 

54 


Fundamental  and  General  Principles.  §  34 

to  principle  or  authority  a  reasonable  use  of  his  own  property  ;  and 
his  neighbor,  showing  a  substantial  injury  is  entitled  to  protec- 
tion.' Keinhard  v.  Mentasti 47  was  cited,  in  which  Kekewitch,  J., 
is  reported  to  have  said  that  '  notwithstanding  some  passages  in 
some  judgments  to  the  contrary,  the  application  of  the  principle 
governing  the  jurisdiction  of  the  court  in  cases  of  nuisance  does  not 
depend  on  the  question  whether  the  defendant  is  using  his  own 
reasonably  or  otherwise.'  I  prefer  to  guide  myself  by  tlia  judg- 
ment of  Lord  Selborne  to  the  effect  that  the  court  must  consider 
whether  the  defendant  is  using  his  property  reasonably  or  not.  If 
he  is  using  it  reasonably,  there  is  nothing  which  at  law  can  be  con- 
sidered a  nuisance;  but  if  he  is  not  using  it  reasonably,  if  he  is 
using  it  for  purposes  for  which  the  building  was  not  constructed, 
then  the  plaintiff  is  entitled  to  relief."  "  The  defendant  must  not 
unreasonably  use  his  premises  so  as  sensibly  to  annoy  his  neigh- 
bor." 48  But  in  another  English  case  it  is  declared  that  if  the  nui- 
sance complained  of  is  to  the  house  or  land  of  a  person,  and,  having 
in  view  all  the  circumstances  including  the  nature  and  extent  of 
plaintiffs'  enjoyment  before  the  act  complained  of,  the  annoyance 
is  sufficiently  great  to  amount  to  a  nuisance  according  to  the  ordi- 
nary rule  of  law,  whatever  the  locality  may  be,  and  the  act  com- 
plained of  is  done  on  the  land  of  defendant,  the  jury  cannot  prop- 
erly be  asked  whether  the  causing  the  nuisance  was  a  reasonable 
use  by  defendant  of  his  own  land.49  Again,  instructions  to  a  jury 
should  not  be  such  that  they  may  fairly  infer  that  the  erection  com- 
plained of  was  not  a  nuisance  because  the  act  of  defendant  in 
making  such  erection  was  but  a  reasonable  use  of  his  own  property 
where  the  building  alleged  to  ba  a  nuisance  was  so  built,  kept  or 
used  as  to  destroy  the  comfort  of  persons  owning  and  occupying  ad- 
joining premises  and  to  impair  their  value  as  places  of  habitation, 
for  in  such  case  a  nuisance  exists.  So  if  the  adacent  proprietors 
be  annoyed  by   such  erection   in   any  manner,   which   could  be 

47.  42  Ch.  D.  685,  600.  49.  Bamford    v.    Turnley,    3    Best. 

48.  Sanders-Clark  v.  Grosvenor  &  S.  62,  113  Eng.  C.  L.  61.  Pollock, 
Mansions  Co.  Ltd.  (1900),  2  Ch.  373,  C.  B.  dissentiente.  This  case  is  con- 
374,  375,  69  L.  J.  Ch.  579,  580,  581,  sidered  in  Campbell  v.  Seaman,  63 
82  L.  T.  N.  S.  758,  48  Wkly.  Rep.  N.  Y.  568,  579,  20  Am.  Rep.  567,  per 
570,  per  Buckley,  J.  Earl,  J. 

55 


§  35  Fundamental,  and  General  Principles. 

avoided,  it  becomes  an  actionable  nuisance,  even  though  such  struc- 
ture or  building  in  itself  be  a  convenient  and  lawful  erection.50  So 
formerly  an  action  on  the  case  lay  for  a  nuisance  to  the  habitation 
or  estate  of  another;  and  the  rule  applied  if  a  man  erected  any- 
thing offensive  so  near  the  house  of  another  that  it  becomes  use- 
less  thereby,  as  a  swine  stye,  a  lime-kiln,  a  dye  house,  a  privy,  a 
brewhouse,  a  tan-fatt,  a  smelting  house,  or  a  smith's  forge.51 

§  35.  Lawful  or  unauthorized,  reasonable  or  unreasonable  use 
of  property — Conclusion. — If  the  act  done  is  lawful  and  carried 
on  reasonably  and  does  not  interfere  with  health,  comfort  or  the 
ordinary  uses  and  enjoyment  of  property  in  the  neighborhood  it 
cannot  be  a  nuisance  in  fact  or  in  anticipation.52  Generally  there 
can  be  no  recovery  of  damages  resulting  from  the  lawful  and  rea- 
sonable use  by  one  of  his  own  property ;  otherwise  where  there  is 
some  unlawful  or  unreasonable  use  or  sufferance  as  in  case  of 
allowing  water  to  remain  without  excuse  on  one's  lot  so  that  it 
percolated  through  the  soil  to  his  neighbor's  injury.53  But  it  can- 
not be  said  that  the  use  of  one's  property  is  reasonable  and  lawful 
where  he  knows  or  ought  to  know  that  such  use  will  injure  mate- 
rially his  neighbors'  rights  and  it  does  so  injure  them.54  And  a 
"  reasonable  "  nuisance  has  no  existence  in  law.  If  a  man  carries 
on  his  business  so  as  to  create  a  nuisance  he  is  acting  unreason- 
ably.55 So  the  doing  of  an  act  in  the  ordinary  and  obvious  man- 
ner is  not  necessarily  doing  it  in  a  reasonable  and  proper  manner.06 
And  the  fact  that  an  act  is  lawful  if  properly  done  does  not  pre- 
vent its  becoming  a  nuisance  where  it  is  so  negligently  done  as  to 
materially  annoy  and  cause  discomfort  to  the  inmates  of  a  dwell- 
ing house.57    This  rule  is  also  applicable  to  a  trade  or  business  as 

50.  Dargan  v.    Waddill,   31   N.   C.  Conn.    213,     217,    219,    per    Church, 

(9   Ired.  L.),  244,  247,  49  Am.  Dec  Ch,  J. 
421.  55.  Attorney-General    v.    Cole,    70 

51-  1  Comyn's  Dig.  418,  419    (A).  L.  J.  Ch.  148,  83  L.  T.  725    (1901), 

52.  Rhodes  v.  Dunbar,  57  Pa.  274,  1  Ch.  205,  65  J.  P.  88. 

290,  98  Am.  Dec.  221.  56.  Stockport   Waterworks    Co.    v. 

53.  Quinn  v.  Chicago  B.   &  Q.  R.      Potter,   7  H.  &  N.   1G0,  31  L.  J.  Ex. 
Co.,  63  Iowa,  510,  19  N.  W.  336.  9,  7  Jur.  N.  S.  880. 

54.  Whitney    v.    Bartholomew,  21          57.  Dunsbach  v.  Hollister    49  Hun 

56 


Fundamental  and  General  Principles.  §  36 

will  appear  in  the  chapter  on  that  subject,  since,  although  a  busi- 
ness is  lawful,  if  it  invades  private  rights  and  impairs  comfort  and 
enjoyment,  it  is*  to  that  extent  unlawful.58  Again,  although  the 
purposes  for  which  an  erection  is  used  are  lawful  and  it  be  built 
upon  one's  own  land,  yet  if  it  is  so  constructed  or  used  as  to  render 
life  uncomfortable  to  those  living  in  the  neighborhood  it  is  a  nui- 
sance, for  equity  will  on  proper  showing  restrain  one  from  so  using 
this  property  as  to  injure  another.59  And  so,  although  a  lawful 
act  properly  done  cannot  be  treated  as  a  nuisance  per  se,  yet  it  may 
be  so  done  as  to  be  a  nuisance  or  the  surrounding  circumstances 
may  make  it  one.60 

§  36.  Easements  of  light  and  air — Prospect — General  doctrine. 
— In  order  to  determine  whether  or  not  a  nuisance  exists  by  reason 
of  the  obstruction  of  light  and  air  it  is  proper  to  consider  the  doc- 
trine governing  these  easements.  Generally  immemorial  uses, 
grant,  covenant,  contract,  or  statute  are  necessary  to  unobstructed 
light  or  air  over  a  neighbor's  land.61  And  such  easements  may 
exist  under  an  express  grant,  covenant,  or  agreement,62  or  by 
reservation  in  a  deed.63  So,  under  a  covenant,  a  perpetual  ease- 
ment to  light  and  air  may  be  retained  by  a  grantor  to  land  abutting 

(N.  Y.),  352,  17  N.  Y.  St.  R.  461,  2  62.  Keating    v.    Springer,    146    111. 

N.  Y.  Supp.  94,  132  N.  Y.  602,  44  N.  481,  493,  34  N.  E.  895,  22  L.  R.  A. 

Y.  St.  R.  934,  30  N.  E.  1152.  544,   37  Am.   St.   Rep.   175;   Janes  v. 

See,   also,   Hurlbut  v.   McKone,   55  Jenkins,  34  Md.   1,  6  Am.  Rep.  300; 

Conn.  31,  10  Atl.   164,  4  N.  Eng.  81.  Ladd   v.    Boston,    151    Mass.    585,   21 

58.  Pennoyer  v.  Allen,  56  Wis.  Am.  St.  Rep.  481,  24  N.  E.  858  (ease- 
502,  512,  43  Am.  Rep.  728,  14  N.  W.  ment  of  light,  air  and  prospect  may 
609,  per  Cassoday,  J.  exist  by  covenant  between  owneres  of 

59.  Kasper  v.  Dawson,  71  Conn.  lots  bounded  on  a  square)  ;  Salisbury 
405,  410,  42  Atl.  78,  per  Hall,  J.  v.  Andrews,  128  Mass.  336   (right  ex- 

60.  Windfall  Mfg.  Co.  v.  Patter-  isted  to  have  open  court  and  light 
son,  148  Ind.  414,  420,  421,  47  N.  E.  and  air  under  provisions  in  a  deed)  ; 
2,  62  Am.  St.  Rep.  532,  37  L.  R.  A.  Muzzarelli  v.  Hulshizer,  163  Pa.  643, 
381.  30  Atl.   291    (deed  with  building  re- 

61.  Chastey  v.  Ackland  (1895),  2  striction  in  nature  of  covenant  held 
Ch.  389,  64  L.  J.  Q.  B.  N.  S.  523,  72  to  create  easement  of  light  and  air). 
L.  T.  N.  S.   845.  63.  Hagerty   v.   Lee,    54    N.    J.    L. 

See,  also,  Kennedy  v.  Burnap,   120      580,  20  L.  R.  A.  631,  25  Atl.  319. 
Cal.  488,  52   Pac.   843,  40  L.   R.  A. 
476. 

57 


36 


Fundamental  and  General  Principles. 


on  a  private  alley.64  Such  easements  for  existing  windows  and 
doors  of  a  building  may  also  exist  to  an  ordinary  or  limited  extent 
when  created  by  a  will  providing  for  the  continuance,  unchanged 
as  far  as  possible,  of  a  mansion  house  estate  with  an  annexed  open 
space.65  So  easements  of  light  and  air  may  attach  as  an  appurte- 
nance when  reasonably  essential  to  the  beneficial  enjoyment  of  a 
building,  and  also  when  at  the  time  of  the  interchange  of  cross 
i  inveyances  between  tenants  in  common,  upon  severance  of  the 
parcel  upon  which  the  building  stood,  such  easements  were  ap- 
parent as  well  as  continuous.66  This  principle  has  been  also 
recognized  in  other  cases.67  But,  subject  to  these  and  other  decis- 
ions of  like  tenor,  the  conveyance  of  a  building  by  the  owner  of  ad- 
jacent lots  does  not  impliedly  pass  an  easement  of  light  and  air, 
even  though  the  erection  of  buildings  on  such  lots  will  greatly  im- 
pair the  value  and  also  the  enjoyment  of  the  building  conveyed.68 
In  an  English  case,  however,  decided  in  1824,  the  principle 
is  asserted  that  if  a  man  erect  on  a  part  of  his  land  a  house,  having 


64.  Metropolitan  West  Side  Ele- 
vated E.  Co.  v.  Springer,  171  111.  170 
9  Am.  &  Eng.  R.  Cas.  N.  S.  731,  49 
N.  E.  416.  See  Brooks  v.  Reynolds, 
106  Mass.  31,  a  case  where  a  gran- 
tee had  the  right  to  the  open  and  un- 
obstructed passage  of  light  and  air 
from  the  ground  upwards  and 
throughout  the  length  of  a  passage- 
way. This  case  is  distinguished  in 
Grafton  v.  Moir,  130  N.  Y.  465,  473, 
42  N.  Y.  St.  R.  373,  27  Am.  St.  Rep. 
533,  29  N.  E.  974,  9  W.  N.  Supp.  3. 

65.  Baker  v.  Willard,  171  Mass. 
220,  40  L.  R.  A.  754,  50  N.  E.  620. 
The  court,  per  Allen,  J.,  said:  "We 
find  no  satisfactory  evidence  to  show 
that  the  testator  sought  to  create  any 
further  protection  or  advantage  to 
the  mansion  house  estate,  in  regard  to 
light  and  air,  than  the  ordinary  ease 
ment  of  that  kind  ...  An  im- 
plied grant  of  an  easement  is  not  to 
be    extended   by    construction   beyond 


what  was  necessary,  or  what  is  fair- 
ly shown  to  have  been  within  the  in- 
tention of  the  creator  of  it." 

66.  Greer  v.  Van  Meter,  54  N.  J. 
Eq.  270,  33  Atl.  794. 

67.  Kennedy  v.  Burnap,  120  Cal. 
488,  52  Pac.  843,  40  L.  R.  A.  476; 
Robinson  v.  Clapp,  65  Conn.  365,  29 
L.  R.  A.  582,  32  Atl.  939;  Turner  v. 
Thompson,  58  Ga.  268,  272-275,  24 
Am.  Rep.  497;  Bloom  v.  Koch,  63  N. 
J.  Eq.  10,  50  Atl.  62.  See  White  v. 
Bradley,  66  Me.  254;  Jones  v.  Jenk- 
ins, 34  Md.  1,  6  Am.  Rep.  300; 
Doyle  v.  Lord,  64  N.  Y.  432,  439,  21 
Am.  Rep.  629;  Rennyson's  Appeal, 
94  Pa.  St.  147,  39  Am.  Rep.  777; 
Powell  v.  Sims,  5  W.  Va.  1,  7,  13  Am. 
Rep.  629. 

Compare  Keating  v.  Springer,  146 
111.  481,  493,  37  Am.  St.  Rep.  175, 
34  N.  E.  805,  22  L.  R.  A.  544. 

68.  Kennedy  v.  Burnap,  120  Cal. 
488,  40  L.  R.   A.   476.   52   Pac.   843. 


58 


Fundamental  and  General  Peinciples. 


the  comfort  of  windows,  for  the  purpose  of  enjoyment  and  habi- 
tation, and  grant  to  another  person  an  interest  in  that  house,  he 
cannot  afterwards  do  upon  his  adjoining  property  that  which  as 
against  a  stranger  would  be  a  nuisance.  He  cannot  do  anything 
in  prejudice  of  his  own  grant  and  if  the  consequence  of  making 
alterations  on  the  demised  premises  or  of  erecting  intended  build- 
ings thereon  will  be  to  destroy  the  comfortable  enjoyment  of  the 
house  and  render  it  unwholesome  the  act  will  clearly  constitute  a 
nuisance  both  on  the  principles  of  law  and  equity.69  Under  the 
English  Prescription  Act  an  absolute  and  indefeasible  right  to  light 
for  a  dwelling  house,  workshop  or  other  building  may  be  acquired 
by  actual  enjoyment  thereof  for  twenty  years'  without  interrup- 
tion.70    It  is  declared,  however,  that  the  right  to  air  is  not  an 


See  Robinson  v.  Clapp,  65  Conn.  365, 
383,  29  L.  R.  A.  582,  32  All.  939; 
Turner  v.  Thompson,  58  Ga.  268,  24 
Am.  Rep.  497;  Keating  v.  Springer, 
146  111.  481,  493,  37  Am.  St.  Rep. 
175,  34  N.  E.  805,  22  L.  R.  A.  544; 
Ray  v.   Sweeney,   14   Bush.    (Ky.),   1, 

29  Am.  Rep.  388;  Mullen  v.  Strieker, 
19  Ohio  St.  135,  2  Am.  Rep.  379; 
Rennyson's  Appeal,  94  Pa.  St.  147, 
39  Am.  Rep.  777;  Examine  Christ 
Church    v.    Lavezzolo,    156    Mass.    89, 

30  N.  E.  471;  Bloom  v.  Koch,  63  N. 
J.  Eq.  10,  50  Atl.  62;  Powell  v.  Sims, 
5  W.  Va.  1,  7,  13  Am.  Rep.  629. 

See,  also,  Morrison  v.  Marquardt, 
24  Iowa,  35,  58-67,  92  Am.  Dec.  444. 
By  the  ruling  in  this  case,  it  seems, 
though  not  expressly  decided,  that 
the  English  doctrine  that  if  one  sells 
a  house  he  cannot  afterwards  build, 
etc.,  is  not  applicable  here.  See 
White  v.  Bradley,  66  Me.  254 
( quaere ) . 

69.  Palmer  v.  Paul,  2  L.  J.  0.  S. 
(Ch.   Cas.),   154,   157. 

70.  Clifford  v.  Holt  (1899),  68  L. 
J.   Ch.   N.   S.   332. 

See,  also,  Jordan  v.  Sutton,  South- 


coates  &  Drypool  Gas  Co.,  67  L.  J. 
Ch.  N.  S.  666,  673,  674;  Gale  v.  Ab- 
bott, 6  L.  T.  R.  N.  S.  852,  8  Jur.  N. 
S.  987,  10  Wkly.  Rep.  748;  Hall  v. 
Leichfield  Brewery  Co.,  49  L.  J.  Ch. 
655,  43  L.  T.  R.  380,  N.  S.  384.  See 
Collins  v.  Laugher  (1894),  3  Ch.  659, 
63  L.  J.  Ch.  851,  43  Wkly.  Rep.  202; 
Bonner  v.  Great  Western  Ry.  Co., 
48  L.  T.  Rep.  N.  S.  619,  24  Ch.  D.  1, 
32   W.  R.   190,  47   J.   P.  5S0. 

Compare  Wheaton  v.  Maple  &  Co. 
(1893),  3  Ch.  48,  62  L.  J.  Ch.  903, 
2  R.  549,  41  W.  R.  677,  69  L.  T.  208. 

"  If  the  owner  of  adjacent  land 
erects  a  building  so  near  the  house  of 
the  plaintiff  as  to  prevent  the  air 
and  light  from  entering  and  coming 
through  the  plaintiff's  windows,  an 
action  will,  in  some  cases,  lie.  The 
law  on  this  subject  formerly  was, 
that  no  action  would  lie,  unless  a 
right  had  been  gained  in  the  lights 
by  prescription;  but  it  was  subse- 
quently held,  that,  upon  evidence  of 
an  adverse  enjoyment  of  lights  for 
twenty  years  or  upwards  unex- 
plained, a  jury  might  be  directed  to 
presume   a   right  by  grant   or   other- 


59 


§36 


Fundamental  and  General  Principles. 


easement  under  the  English  Prescription  Act ;  but  that,  although  it 
does  not  apply  to  air,  a  right  to  have  it  come  over  another's  land, 
in  some  definite  direction  to  some  particular  place,  can  probably 
be  established  by  what  is  called  immemorial  user,  or  by  user 
which  may  have  had  for  its  origin  some  lost  grant  or  agreement 


wise,  even  though  no  lights  had  ex- 
isted there  before  the  commencement 
of  the  twenty  years;  and  although, 
formerly,  if  the  period  of  enjoyment 
fell  short  of  twenty  years,  a  presump- 
tion in  favor  of  the  plaintiff's  right 
might  have  been  raised  from  other 
circumstances,   it   is  now   enacted   by 

2  and  3  Will.  4,  c.  71,  §  6,  that  no 
presumption  shall  be  allowed  or 
made  in  support  of  any  claim  upon 
proof  of  the  exercise  of  the  enjoy- 
ment of  the  right  or  matter  claimed 
for  less  than  twenty  years;  and  by  § 

3  of  the  same  statute,  that  'when 
the  access  and  use  of  light  to  and  for 
any  dwelling-house,  workshop,  or  other 
building,  shall  have  been  actually  en- 
joyed therewith  for  the  full  period  of 
twenty  years,  without  interruption, 
the  right  thereto  shall  be  deemed  ab- 
solute and  indefeasible,  any  local 
usage  or  custom  to  the  contrary  not- 
withstanding, unless  it  shall  appear 
that  the  same  was  enjoyed  by  some 
consent  or  agreement  expressly  made 
or  given  for  that  purpose  by  deed  or 
writing.'  And  by  §  4,  it  is  further 
enacted,  that  'the  period  of  twenty 
years  shall  be  taken  to  be  the  period 
next  before  some  suit  or  action  where- 
in the  claim  shall  have  been  brought 
into  question;  and  no  act  or  matter 
shall  be  deemed  to  be  an  interruption 
within  the  meaning  of  the  statute, 
unless  the  same  shall  have  been  sub- 
mitted to,  or  acquiesced  in,  for  one 
year  after  the  party  interrupted  shall 


have  had  notice  thereof,  and  of  the 
person  making  or  authorizing  the 
same  to  be  made.'  "  Broom's  Legal 
Maxims  (7th  Amer.  ed.,  1874),  380, 
381  *  381  *  382. 

In  Kelk  v.  Pearson,  L.  K.,  6  Ch. 
809,  19  Wkly.  Rep.  665,  24  L.  T.  Rep. 
N.  S.  890,  decided  in  1871,  it  is  field 
that  the  statute  (2  and  3  Will.  4, 
c.  71),  altered  in  no  degree  whatever 
the  pre-existing  law  as  to  the  nature 
and  extent  of  the  right;  that  since 
the  statute,  as  before  the  statute,  it 
is  simply  a  question  of  degree,  and 
whether  the  light  is  used  for  the  pur- 
poses of  business  or  a  residence,  the 
rule  is  the  same,  that  it  is  sufficient 
that  the  easement  cannot  be  enjoyed 
in  as  full  and  ample  a  manner  as  be- 
fore, or  that  the  premises  to  a  sensi- 
ble degree  are  less  fit  for  the  pur- 
poses of  business  or  habitation ;  that 
the  owner  of  an  ancient  light  is  en- 
titled to  prevent  his  neighbor  from 
obstructing  the  access  of  light,  so  as 
to  render  the  house  possessing  the 
ancient  light  substantially  less  fit  for 
habitation.  This  case  is  approved  of 
in  Warren  v.  Brown,  L.  R.  (1902),  1 
K.  B.  15,  71  L.  J.  K.  B.  12,  50  Wkly. 
Rep.  97,  85  L.  T.  444,  as  to  the  ques- 
tion of  degree  and  a  right  to  relief 
for  substantial  interference;  and 
Romer,  L.  J.,  says:  That  since  this 
case  of  Kelk  v.  Pearson  "  it  is  im- 
possible to  hold  properly  that  the 
statutory  right  is  not  interfered  with 
merely  because  after  the  interference 


60 


Fundamental  and  General  Principles. 


36 


binding  on  the  owners  of  the  servient  tenement.71  But  mere  length 
of  time  does  not,  in  the  absence  of  the  acquirement  of  some  adverse 
legal  right,  enable  one  to  acquire  the  enjoyment,  as  against  his 
neighbor,  of  the  right  to  have  an  unobstructed  passage  of  light  and 
air  through  the  windows  of  his  home.7"  And  in  the  United  States 
the  courts,  with  certain  early  exceptions,  have  not  recognized  or  at 
least  have  rejected  the  English  doctrine  of  ancient  lights  or  that  an 
easement  of  unobstructed  passage  of  light  and  air  over  another's 
land  may  be  acquired  by  user  or  prescription.73     In  a  New  York 


the  house  may  still  come  up  to  some 
supposed  standard  as  to  what  a  house 
ordinarily  requires  by  way  of  light, 
for  purposes  of  inhabitancy  or  busi- 
ness." He  also  says :  "  The  statute 
in  its  terms  might  appear  to  sanction 
the  view  that  the  right  to  light  once 
acquired  was  absolute  as  to  every 
part  of  it,  so  that  any  interference 
however  slight  would  be  wrongful. 
But  it  was  soon  established  that  the 
statute  had  not  altered  the  charac- 
ter of  the  right,  though  it  had  altered 
the  method  by  which  it  could  be  ac- 
quired; and  it  was  held  that  the 
right  would  not  be  interfered  with  if 
there  were  no  substantial  diminution 
of  the  light  such  as  to  cause  substan- 
tial damage  to  the  tenant  or  owner. 
And,  in  considering  what  would  be  a 
substantial  diminution  and  substan- 
tial damage,  it  is  held  that  the  proper 
point  of  view  is  to  pay  regard,  not 
to  what  some  person  having  fantas- 
tic or  peculiar  views  might  choose  to 
regard  as  a  substantial  diminution  or 
as  substantial  damage,  but  to  the 
views  of  persons  of  ordinary  sense 
and  judgment.  And,  in  particular, 
in  considering  whether  a  house  has 
been  substantially  injured,  it  is 
proper  to  have  regard  to  the  ordinary 
uses  by  way  of  habitation  or  business 
to  which  the  house  has  been  put,  or 


might  reasonably  be  supposed  to  be 
capable  of  being  put  .  .  .  And 
at  the  present  day,  if  ancient  lights 
are  interfered  with  substantially,  and 
real  damage  thereby  ensues  to  tenant 
or  owner,  then  that  tenant  or  owner 
is  entitled  to  relief,"  and  the  plain- 
tiffs were  held  entitled  to  damages 
for  substantial  interference  with 
ancient  lights  and  the  uses  of  their 
premises  for  the  purpose  of  a  special 
business  requiring  a  special  quantity 
of  light.  There  is  much  analogy  be- 
tween the  reasoning  in  the  opinion 
in  this  case  and  the  underlying  prin- 
ciples governing  nuisances. 

71.  Chastey  v.  Ackland  (1895),  2 
Ch.  389,  402,  64  L.  J.  Q.  B.  523,  72 
L.  T.  N.  S.  845,  per  Lindley,  L.  J. 

72.  Bailey  v.  Gray,  53  S.  C.  503, 
516,  31  S.  E.  354,  per  Mclver,  C.  J. 

73.  Jesse  French  Piano  &  Organ 
Co.  v.  Forbes,  129  Ala.  471,  477,  87 
Am.  St.  Rep.  71,  29  So.  683;  Kennedy 
v.  Burnap,  120  Cal.  488,  490,  40  L. 
R.  A.  476,  52  Pac.  843;  Ingwersen  v. 
Barry,  118  Cal.  342,  50  Pac.  536; 
Turner  v.  Thompson,  58  Ga.  268,  270, 
24  Am.  Rep.  497 ;  Mitchell  v.  Rome, 
49  Ga.  19,  15  Am.  Rep.  669;  Kotz  v. 
Illinois  Cent.  R.  Co.,  188  111.  578, 
583,  59  N.  E.  240;  Keating  v. 
Springer,  146  111.  481,  492,  22  L.  R. 
A.  544,  34  N.  E.  805,  37  Am.  St.  Rep. 


61 


§    36 


Fundamental  and  General  Principles. 


case  it  is  said  that  the  English  rule  in  regard  to  ancient  lights  has 
been  repudiated  in  that  state  and  generally  throughout  the  country 
and  that  under  the  rule  prevailing  there  an  owner  of  property  may 
place  windows  in  the  walls  of  his  house  though  they  overlook  his 


175;  Stein  v.  Hauck,  56  Ind.  65,  26 
Am.  Rep.  10,  1  R.  St.  1876,  p.  436 
(considered  in  this  connection)  ; 
Lapere  v.  Luckey,  23  Kan.  534,  538, 
33  Am.  Rep.  196;  Ray  v.  Sweeney,  14 
Bush.  (Ky.),  1,  29  Am.  Rep.  388; 
White  v.  Bradley,  66  Me.  254,  264, 
per  Barrows,  J.;  Cherry  v.  Stein.  11 
Md.  1;  Keats  v.  Hugo,  115  Mass.  204, 
208-213,  15  Am.  Rep.  80;  Hayden  v. 
Dutcher,  31  N.  J.  Eq.  217;  Doyle  v. 
Lord,  64  N.  Y.  432,  439;  Parker  v. 
Foote,  19  Wend.  (N.  Y.),  309;  Mey- 
ers v.  Gemmel,  10  Barb.  (N.  Y.), 
537;  Mullen  v.  Strieker,  19  Ohio  St. 
135,  2  Am.  Rep.  379;  Haverstick  v. 
Sipe,  33  Pa.  St.  368 ;  Bailey  v.  Gray, 
53  S.  C.  503,  515,  31  S.  E.  354;  Klein 
v.  Gehrung,  25  Tex.  Suppl.  232,  78 
Am.  Dec.  565;  Hubbard  v.  Toun,  33 
Vt.  295;  Tunstall  v.  Christian,  80 
Va.  1,  4,  56  Am.  Rep.  581,  per  Lewis, 
P.;  Powell  v.  Sims,  5  W.  Va.  1,  7,  13 
Am.  Rep.  629.  See  Goodwin  v.  Alex- 
ander, 105  La.  658,  30  So.  102;  Pierre 
v.  Fernald,  13  Shep.  (26  Me.),  436, 
46  Am.  Rep.  473;  Milnes'  Appeal,  81 
Pa.  St.  54;  Hoy  v.  Sterret,  2  Watts 
(Pa.),  327,  331,  27  Am.  Dec.  313; 
Napier  v.  Bulwinkle,  5  Rich.  ('S.  C. ) , 
311;  Washburn  on  Real  Prop.  (6th 
ed.),  §  1281;  3  Blackstone's  Comm. 
(Cooley),  *  216,  note  1. 

Compare  Gerber  v.  Grabel  (1854), 
16  111.  217;  Fifty  Associates  v.  Tu- 
dor, 6  Gray  (Mass.),  255;  Robeson  v. 
Pittenger  (1838),  2  N.  J.  Eq.  57,  32 
Am.  Dec.  412;  Mahan  v.  Brown 
(1835),  13  Wend.  (N.  Y.),  261,  28 
Am.  Dec.  461. 


In  Clawson  v.  Primrose,  4  Del.  Ch. 
643,  dated  1873,  it  is  held  that  the 
English  doctrine  of  presumptive  title 
to  light  and  air,  received  over  land 
of  another  person,  arising  from  the 
uninterrupted  enjoyment  of  it  for 
twenty  years  and  upward,  through 
the  window  of  a  dwelling  house,  was 
part  of  the  common  law  of  England 
and  of  the  colonies  at  the  period  of 
American  Independence,  and  as  such 
construed  to  be  the  law  of  Delaware 
under  its  constitution  adopted  at  the 
organization  of  the  State  government 
in  1776. 

Under  a  decision  given  not  later 
than  1843,  it  was  held  that  a  party 
has  no  right  to  build  so  near  his 
neighbor  as  to  immediately  obstruct 
the  passage  of  light  and  air;  but  the 
mere  tendency  to  obstruct  the  free 
passage  of  the  one  or  the  other  is  not 
sufficient  to  warrant  the  restraining 
process  of  a  court  of  equity,  and  the 
court  said  that  "  it  can  scarcely  be 
asserted  that  the  right  to  the  enjoy- 
ment of  a  free  circulation  of  air  be- 
longs to  a  citizen  of  a  large  town. 
The  circulation  of  air  is  obstructed 
and  confined  in  every  city  in  propor- 
tion as  it  is  compactly  built." 
The  case  turned,  however,  upon 
the  difference  between  an  erec- 
tion which  is  in  itself  a  nui- 
sance and  one  which  may  prove 
so  according  to  circumstances  and 
also  upon  the  point  that  complainant 
had  not  stated  a  case  from  which  di- 
rect and  unavoidable  injury  would  re- 
sult to  him,  but  had  merely  shown  a 


62 


Fundamental,  and  General  Principles.  §    36 

neighbors'  laud;  and  that  it  will  not  do  for  a  man  to  build  to  the 
extreme  end  of  his  lot,  and  then  complain  because  his  rear  neigh- 
bor, in  exercising  the  same  privilege,  has  cut  off  the  light,  air,  or 
prospect  he  formerly  enjoyed.74  And  in  Louisiana  it  is  declared  that 
a  servitude  of  light  and  air  through  windows  in  a  wall  cannot  be 
acquired  by  prescription  against  the  owner  of  the  adjacent  lot 
unless  he  is  able  to  assert  the  right  to  have  them  closed.75  But  even 
though  the  right  to  have  unobstructed  light  over  another's  land 
could  be  presumed  from  long  acquaintance  in  its  enjoyment  which 
would  thereby  ripen  into  a  title  and  presuppose  a  grant  neverthe- 
less if  there  is  a  recent  erection  by  one  of  a  house  on  the  margin 
of  a  town  or  city  lot  with  a  window  opening  upon  an  adjoining 
proprietor's  lot,  that  person  does1  not  by  such  erection  acquire  such 
a  right  to  the  use  of  his  window  as  to  preclude  the  adjacent  pro- 
prietor from  exercising  his  right  to  build  on  his  lot  in  any  manner 
his  fancy  or  judgment  may  dictate  provided  the  building  is  not  a 
nuisance  and  is  constructed  with  a  due  regard  to  the  safety  of 
others.76  The  stopping  of  a  prospect  is  no  nuisance.77  So  it  is  de- 
clared in  an  early  English  case  that  an  action  on  the  case  lies  for 
obstructing  air  and  light  but  not  for  obstructing  a  prospect,  as  both 
light  and  air  are  necessary  while  a  prospect  is  a  matter  of  delight 

state   of   things    from    which    injury  twenty  years,  the  law  presumeed  that 

might  or  might  not  result,  according  he  had  granted  to  him  the  use  of  it. 

to   the   circumstances,   and   demurrer  Palmer  v.  Paul,  2  Law  J.  O.  S.  154, 

to  the  bill  was  sustained.       Gwin  v.  157    (Ch.  Cas.). 

Melmoth,   1  Freem.  Ch.    (Miss.),  505.  See,   further,   as    to   ancient   lights 

See  last  preceding  section  herein.  and  easements  of  light  and  air  notes: 

The  law  with    respect    to    ancient  7  Am.   Dec.   49-53;   41  Am.   St.  Rep. 

lights  had  reference  only  to  the  cases  323-329;   22   L.  R.  A.  536-543. 

where  the  owner   of  such   lights  had  74.  Levy    v.     Samuel,     23     N.     Y. 

acquired  a  title  against  the  owner  of  Supp.  825,  826,  4  Misc.   48,  per  Mc- 

adjoining   property    by   an   actual    or  Adam,  J. 

presumed  grant.  It  happens  some-  75.  Oldstein  v.  Foreman's  Build- 
time,  though  not  often,  that  ancient  ing  Assoc,  44  La.  Ann.  492,  10  So. 
lights    were    protected    by    an   actual  928. 

grant;  more  frequently  they  depended  76.  Ray  v.  Lynes,  10  Ala.  63. 

upon  a  presumed  grant;     for  if  the  77.  Knowles  v.  Richardson,  1  Mod. 

owner  of  adjoining  ground  permitted  *   55    (case   109). 
his  neighbor  the  use  of  a  window  for 


63 


§   36 


Fundamental  and  General  Principles. 


only  and  not  of  necessity.78  Another  general  principle  is  that  an 
owner  of  property  abutting  on  a  street  has  a  right  to  remuneration 
for  an  injurious  interference  with  or  interruption  of  light  from 
the  street  as  the  free  enjoyment  of  these  easements  is  necessary 
to  a  beneficial  use  of  the  property.79  Again,  the  obstruction  of  light 
and  air  in  connection  with  other  factors  of  injury  may  constitute 
a  nuisance.  Thus  the  construction,  over  an  alleyway  appurtenant 
to  a  building  and  upon  which  it  abutted,  of  a  room  with  a  stairway 
leading  down,  closing  up  exits  and  cutting  off  light  and  ventilation 
and  blockading  the  free  use  of  the  way  and  creating  offensive  and 
unhealthful  odors  by  cooking,  to  the  injury  of  another  tenant  is  a 
nuisance  for  which  a  mandatory  injunction  may  be  granted.80  If 
there  is  such  an  obstruction  of  light  and  air  as  justifies  a  remedy 
it  may  be  restrained  even  though  the  injured  party  could  make 
other  openings  and  so  supply  the  deficiency  created  by  such  ob- 
struction.81 In  England  unless  the  right  to  have  air  come  over  the 
land  of  another  has  been  acquired  by  lapse  of  time  the  mere 


78.  Aldred's  Case,  9  Coke,  57b, 
58b,  per  Wray,  C.  J. 

79.  Pond  v.  Metropolitan  Elevated 
Ey.  Co.,  42  Hun  (N.  Y.)  567,  4  N. 
Y.  St.  E.  661,  rev'd  112  N.  Y.  186, 
20  N.  Y.  St.  E.  479,  19  N.  E.  487, 
upon  the  ground  that  permanent  de- 
preciation cannot  be  recovered  in  an 
action  of  the  character  before  the 
court,  and  it  was  said  that  the  prin- 
ciple was  established  that  an  abutting 
owner  on  streets  in  New  York  city, 
possesses  as  one  incident  to  such 
ownership,  easements  of  light,  air  and 
access  in  and  from  the  adjacent 
streets  for  the  benefit  of  his  abutting 
lands,  and  that  the  appurtenant  ease 
ments  constitute  private  property,  of 
which  he  cannot  be  deprived,  without 
compensation.  See,  also,  Kotz  V. 
Illinois  Central  E.  Co.,  188  111.  578, 
582,  59  N.  E.  240;  Case  v.  Minot,  158 
Mass.  577,  22  L.  E.  A.  536,  33  N.  E. 
700.    See  Kane  v.  New  York  Elevated 


E.  Co.,  125  N.  Y.  164,  34  N.  Y.  St. 
E.  876,  11  L.  E.  A.  640,  26  N.  E. 
278;  Abendroth  v.  Manhattan  Ele- 
vated Co.,  122  N.  Y.  1,  33  N.  Y.  St. 
E.  475,  25  N.  E.  496,  afPg  54  N.  Y. 
Supp.  417,  19  Abb.  N.  C.  247,  7  N. 
Y.  St.  E.  43,  which  rev'd  52  N.  Y. 
Super.  274. 

"  The  abutting  owners  of  property 
on  a  public  street  have  as  good  right 
to  the  free  enjoyment  of  the  ease- 
ments of  light  and  air  as  they  have 
of  their  property  itself.  Without  the 
free  enjoyment  of  these  easements 
they  could  have  no  beneficial  use 
of  their  property."  Chicago  G.  W. 
Ey.  Co.  v.  First  Methodist  Episcopal 
Church  (U.  S.  C.  C.  A.),  102  Fed. 
85,  91,  50  L.  E.  A.  488,  per  Caldwell, 
C.  J. 

80.  Shroyer  v.  Campbell,  31  Ind. 
App.  83,  67  N.  E.  193. 

81.  Clawson  v.  Primrose,  4  Del. 
Ch.  643. 


64 


Fundamental  and  General  Principles.  §  37 

diminution  of  quantity  is  not  a  nuisance  in  law,  but  damages 
may  be  received  for  an  interference  with  ancient  lights.82 

§  37.  Doctrine  of  easements  of  light  and  air  applied  to  nuis- 
ances—Easement of  view.— It  would  seem  to  logically  follow 
from  the  definition  of  a  nuisance  and  also  from  the  premises  stated 
under  the  last  section  that  the  obstruction  of  light  and  air  over 
another's  land  will  not  constitute  a  nuisence  as  to  one  in  whom  no 
such  right  or  easement  exists  and  that  such  a  nuisance  can  only 
exist  as  to  one  in  whom  there  is  an  easement  of  light  and  air. 
Thus  a  fence  erected  on  one's  own  land  is*  not  a  nuisance  though  it 
obstructs  a  neighbor's  light,  in  the  absence  of  an  acquired  righl 
by  grant,  occupation  or  acquiescence,83  But  a  fence  erected  for 
no  useful  purpose  and  which  shuts  off  another's  light  and  air  is  a 
nuisance  when  erected  solely  for  a  malicious  purpose.84  A  coal 
and  wood  house  being  a  building  erected  for  a  useful  purpose  is 
not  a  nuisance  though  it  darkens  another's  windows.85  In  the  ab- 
sence of  an  adverse  right  by  prescription,  grant  or  otherwise,  the 
owner  has  a  right  to  make  erections-  upon  his  own  land  which  will 
have  the  effect  to  deprive  an  adjacent  owner  of  light  and  air  to  his 
house  and  also  to  obstruct  his  view,  and  such  structure,  unless 
made  of  offensive  material  will  not  constitute  a  nuisance  for  which 
an  action  will  lie.86  And  the  darkening  of  another's  windows  or 
depriving  him  of  a  prospect  where  no  right  to  an  unobstructed 
light  exists,  invades  no  legal  right  and  gives  no  right  of  action, 
even  though  it  impairs  the  enjoyment  and  value  of  another's 
property,87  nor  does  the  mere  fact  that  a  building  prevents  air  from 

82.  Chastey  v.  Ackland  (1895),  2  Compare  Letts  v.  Kessler,  54  Ohio 
Ch.  389,  64  L.  J.  Q.  B.  523,  72  L.  T.  St.  73,  42  N.  E.  765,  40  L.  R.  A.  177. 
N-  S-  845>  85.  Kuzniak     v.     Kozminski,     107 

83.  Mahan  v.  Brown,  13  Wend.  Mich.  444,  61  Am.  St.  Rep.  344,  65 
(N.  Y.),  261,  28  Am.  Dec.  461.  This  N.  W.  275,  2  Del.  L.  N.  713,  28  Chi- 
case  recognizes  ancient  lights.     Letts  cago  Log.  News,  166. 

v.  Kessler,  54  Ohio  St.  73,  42  N.  E.  86.  Ilonsel  v.  Conant,  12  111.  App. 

765,  40  L.  R.  A.  177.  (12  Bradw.)    259,  260.  ' 

84.  Peek  v.  Roe,  110  Mich.  52,  67  87.  Pickard  v.  Collins,  23  Barb 
N.  W.  1080;  Flaherty  v.  Moran,  81  (N.  Y),  444,  458.  This  case  recog- 
Mieh.  52,  45  N.  W.  381,  8  L.  R.  A.  nizes  a  right  to  light  by  prescription. 
183,  21  Am.  St.  Rep.  510. 

65 


§  38  Fundamental  and  General  Principles. 

circulating  so  as  to  carry  off  noisome  or  bad  smells,  constitute  a 
nuisance  as  to  a  neighbor  where  the  smells  arise  on  the  latter's 
premises1.88  So,  where  growing  trees  are  maintained  along  a  boun- 
dary line,  they  do  not  constitute  a  nuisance  because  the  branches 
extend  over  plaintiff's  land  and  injure  fruit  trees  by  their  shade.89 
The  obstruction  of  light  from  the  street  may,  however,  constitute 
a  nuisance  as  to  owner  of  property  abutting  thereon.90  So,  an  ob- 
struction of  a  New  York  city  street  which  deprives  plaintiff,  who 
occupies  an  adjoining  building,  of  light  and  air  to  a  considerable 
extent  at  all  times  and  entirely  cuts  off  the  view  of  his  premises 
from  the  other  side  of  the  street  is  such  a  nuisance  as  justifies  an 
injunction.91  So,  that  if  no  express  covenant  exists  upon  which 
such  a  right  can  be  based,  no  action  can  be  maintained  for  ob- 
structing or  interfering  with  a  view.92  And  no  right  of  action 
exists  because  the  view  is  obstructed  by  screens  or  adjacent  land 
where  by  opening  the  window  shutters  the  light  and  air  will  be 
unobstructed.93  And  the  facts  that  a  view  of  the  sea  and  the  gulf 
breeze  is  shut  off,  thereby  tending  to  depreciate  the  value  of  the 
property,  do  not  constitute  the  erection  of  a  private  residence  a 


§  38.  Right  to  pure  and  fresh  air.—  The  people  of  a  community 
are  entitled  to  pure,  fresh,  untainted,  unpolluted,  uncontaminated, 
inoffensive  air,  and  every  person  is  entitled  to  a  necessary  supply 
and  reasonable  use  thereof  for  himself  and  family  for  the  ordinary 

88.  Chastey  v.  Ackland  (1895),  where  Lord  Campbell,  C.  J.,  says: 
2  Ch.  389,  64  L.  J.  Q.  B.  N.  S.  523.  "  I  am  clearly  of  opinion  that  he  is 

89.  Grandona  v.  Lovdal,  78  Cal.  not  entitled  to  any  compensation  for 
611,  21  Pac.  366,  12  Am.  St.  Rep.  the  overlooking  of  his  premises  by  the 
121 ;  other  factors  of  claimed  injury  railway.  It  might  as  well  be  said 
were,  however,  also  considered.  that   the  owner  of   a   house   was   en- 

90.  Townsend  v.  Epstein,  93  Md.  titled  to  compensation  on  account  of 
537,  52  L.  R.  A.  409,  49  Atl.  629,  86  the  view  from  it,  half  a  mile  off,  hav- 
Am.  St.  Rep.  441.  ing  been  obstructed  by  the  railway." 

91.  La  very  v.  Hannigan,  52  N.  Y.  93.  Taylor  v.  Boulware,  35  La. 
Super.   (20  Jones  &  S.),  463.  Ann.  469. 

92.  Tompkins  v.  Harwood,  24  N.  94.  Quintin  v.  Bay  St.  Louis,  64 
J.  L.  425.  Examine  Re  Penny,  7  Ell.  Miss.  483,  1  So.  625,  60  Am.  Rep.  62. 
&  BI.  660,  90  Eng.  C.  L.  Rep.   660, 

66 


Fundamental,  and  General  Principles.  §  39 

purposes  of  breath  and  life.  In  determining-  to  what  degree  the 
air  should  be  fresh  and  pure,  it  should  at  least  not  be  incompatible 
with  the  physical  comfort  of  human  existence ;  but  the  locality  and 
the  circumstances  at  the  time  should  be  considered.95 

§  39.  Extent  and  character  of  injury  and  damage  generally. — 
In  an  early  case  Chief  Justice  Holt,  in  distinguishing  between  a 
trespass  and  a  nuisance,96  said  that  "  the  gist  of  the  action  in  a 
nuisance  is  the  damage ;  and,  therefore,  as  long  as*  there  are  dam- 
ages there  is  ground  for  an  action."97  In  this  connection  it  may 
be  generally  stated  that  if  the  continuance  of  a  nuisance  will  neces- 
sarily work  an  injury  or  it  is  permanent  in  its  character,  continu- 
ing without  change  from  any  cause  but  human  labor,  then  there  isr 
an  original  damage  for  which  compensation  may  be  given  at  once.98 
In  another  frequently  cited  English  case,  it  is  declared  that  in 
order  to  constitute  a  nuisance  there  must  be  not  merely  nominal, 
but  such  a  sensible  and  real  damage  as  a  sensible  person  in  the 
same  situation  would  find  injurious,  but  that  which  is  a  sensible 
and  real  inconvenience  to  property  situate  in  one  place,  or  occu- 
pied in  one  way,  will  be  none  to  property  situate  in  another  place 

95.  State  v.  Luce,  9  Houst.   (Del.)  polluted."     Crump  v.  Lambert,  L.  R., 

396,  398,  32  Atl.  1076,  per  Comegys,  3  Eq.  Cas.  409,  413,  per  Lord  Rom- 

Ch.  J.;  Ross  v.  Butler,  19  N.  J.  Eq.  illy,    M.   R.,   quoted   in   Susquehanna 

294,  299,  300,  97  Am.  Dec.  654;  Wal-  Fertilizer  Co.  v.  Malone,  73  Md.  268, 

ter  v.  Selfe,  15  Jur.  416,  419,  4  Eng.  281,  25  Am.  St.  Rep.  595,  20  Atl.  900, 

L.  &  Eq.  15,  per  Knight  Bruce,  V.  C.j  9  L.  R.  A.  737,  per  Robinson,  J. 
Rex  v.   Neil,  2  Carr.  &  P.  485,   690,  See,     also,    sections    herein    as    to 

per  Abbott,  C.  J.  See  Eller  v.  Koehler,  locality,  as  to  trade  and  business,  as 

68  Ohio  St.  51,  67  N.  E.  89,   12  Am.  to  degree  of  injury  or  damage,  public 

Neg.  Rep.  659;    St.   Helen's  Smelting  benefit  or   advantage   and   reasonable 

Co.  v.  Tipping,  11  H.  L.  Cas.  642,  644,  use  of  property. 
652,  35  L.  J.  Q.  B.  66,  13  W.  R.  1083,  96.    See  §  17  herein. 

12  L.  T.  776,  11  Jur.  N.  S.  785,  per  97.  The   Case   of  The   Farmers  of 

Lord   Wensdale,   in   opinion,  and  per  Hempstead    Water,     12    Mod.    *    510 

Mr.  Justice  Mellor  in  charge  to  jury.  (case  869). 

Saville  v.   Kilner,  26   Law   T.    N.   S.  98.  Powers     v.     City     of     Council 

277,  279.  Bluffs    45   Iowa,   652,    24    Am.    Rep. 

The  owner  of    adjoining    premises  792,  quoting   from  Town  of  Troy  v. 

"retains   his    right   to   have   the   air  Cheshire  Rd.   Co.,  3    Fost.    (N.   H.), 

that  passes  over  his  land  pure  and  un-  83,  per  Bell,  J. 

67 


§39 


Fundamental  and  General  Principles. 


or  occupied  in  another  way."  Many  cases,  however,  are  governed 
by  the  general  principle  that  an  action  can  be  maintained  where 
there  is  only  an  injury  without  actual  damage,  where  such  cases 
are  not  within  the  rule  damnum  absque  injuria,  but  within  the 
maxim  ubi  jus  ibl  remedium.100  So,  even  though  there  is  no  actual 
damage,  if  a  legal  right  has  been  invaded  an  action  lies101  in  case 
of  a  private  nuisance,102  and  if  such  violation  is  clear,  damage  may 
be  presumed.103  So,  if  a  nuisance  exists  the  law  will  infer  dam- 
age,104 and  actual  damage  need  not  be  proven.105  Damages  may  also 
be  merely  nominal  where  the  right  and  the  invasion  thereof  are 
both  clear;106  and  by  analogy  in  cases  of  smoke,  offensive  or 
noisome  odors  or  smells,  and  the  like,  a  nuisance  may  exist  where 


99.  Scott  v.  Firth,  4  Fost.  &  Fin. 
349,  350,  per  Blackburn,  J. 

100.  Parker  v.  Griswold,  17  Conn. 
288,  42  Am.  Dec.  739  (the  principle 
being  that  every  injury  from  its  very 
nature  imports  damage.  This  case 
was  an  action  for  diversion  of  a 
watercourse)  ;  Blanchard  v.  Baker,  8 
Me.  253,  23  Am.  Dec.  504  (an  action 
for  diverting  a  watercourse.  Proof 
of  actual  damage  held  unnecessary)  ; 
Bolivar  Mfg.  Co.  v.  Nepouset,  16 
Pick.  (Mass.),  241  (action  is  main- 
tainable for  invasion  of  right  to  an 
■easement  without  proof  of  actual 
damage  as  law  presumes  damage)  ; 
Dorman  v.  Eames,  12  Minn.  451,  Gilf. 
347,  360,  361  (any  infringement  of  a 
right  is  an  injury  for  which  an  action 
will  lie,  and  where  such  infringement 
is  shown,  though  without  proof  of 
actual  damage,  nominal  damages  may 
be  recovered  for  the  injury);  Webb 
v.  Portland  Mfg.  Co.,  3  Sumn.  (U.  S. 
C.  C),  189  (holding  that  actual  per- 
ceptible damage  is  not  indispensable 
as  the  foundation  of  an  action.  It 
is  sufficient  to  show  a  violation  of  a 
right.  The  law  will  presume  some 
damage  in  such  a  case);    See  gener- 


ally   Broom's     Leg.     Max.      (7th     ed. 
1874"),  *  200  *  203. 

101.  Ashby  v.  White,  2  Ld.  Raym. 
938,  953-955,  per  Holt,  C.  J.,  who 
states  and  applies  the  general  prin- 
ciple. 

102.  Freudenstein  v.  Heine,  6  Mo. 
App  287;  Casebeer  v.  Mowry,  55  Pa. 
St.  419,  93  Am.  Dec.  766;  Delaware  & 
Hudson  Canal  Co.  v.  Torrey,  33  Pa. 
St.  143,  16  L«g.  Int.  189,  7  Am.  L. 
Reg.  611.  See  Alexander  v.  Kerr,  2 
Rawle   (Pa.)   93,  19  Am.  Dec.  616. 

"  Exciting,  constant  and  reasonable 
apprehension  of  danger,  although  no 
actual  injury  has  been  occasioned,  has 
been  held  to  be  a  nuisance."  Barnes 
v.  Hathorn,  54  Me.  124,  127,  128,  per 
Kent,  J. 

103.  Casebeer  v.  Mowry,  55  Pa.  St. 
419,   93  Am.  Dec.  766. 

104.  Adams  Hotel  Co.  v.  Cobb, 
Ind.  Ty.  1899,  53  S.  W.  478,  481. 

105.  Fay  v.  Prentice,  1  Mann.  Gr. 
&  S.  828,  50  Eng.  C.  L.  *  828. 

106.  Ashby  v.  White,  2  Ld.  Raym. 
938,  953-955,  per  Holt,  C.  J.,  who 
states,  however,  only  the  general  prin- 
ciple. See  also  Donovan  v.  Ames,  12 
Minn.  451,  Gilf.  347,  360,  361. 


68 


Fundamental,  and  General  Principles.  §  39 

material  discomfort  is  produced.107  But  it  is  not  any  defense  to  au 
action  for  damages  that  the  injury  is  not  appreciable.  The  amount 
of  damages  is  not  the  sole  object  of  an  action  for  the  continuance 
of  a  nuisance.  The  right  is  the  great  question.  One  man  cannot, 
with  impunity,  invade  the  premises  of  another  by  a  nuis'ancc  be- 
cause the  damages  may  be  inappreciable.  The  law  allows  the  re- 
covery of  nominal  damages  at  least  as  evidence  of  the  plaintiff's 
right.108  And  no  matter  how  slight  the  damage,  the  right  of  action 
exists  as  well  for  a  slight  as  for  a  great  injury.109  So,  a  charge 
which  makes  the  right  of  action  depend  upon  whether  the  injury  is 
theoretical,  so  far  as  its  nature  or  extent  is  concerned,  and  not 
whether  a  substantial  injury  is  nominal  or  great,  is  not  erron- 
eous.110 Again,  where  a  public  right  or  privilege,  common  to 
every  person  in  the  community  is  interrupted  or  interfered  with,  a 
nuisance  is  created  by  the  very  act  of  interruption  or  interference, 
which  subjects  the  party  through  whose  agency  it  is  done  to  a  pub- 
lic prosecution,  although  no  actual  injury  or  damage  may  be 
thereby  caused  to  anyone.111  There  must,  however,  ordinarily  be 
an  invasion  of  a  right  otherwise  there  is  no  nuisance.112  But  in  an 
early  case  it  is  declared  that  some  damage  must  be  proved  where 
damages  are  consequential  and  affect  relative  rights  ;113  and  also 

107.  Cleveland  v.  Citizens'  Gas  in  1  Rawle  (Pa.)  27,  quoted  in 
Light  Co.,  20  N.  J.  Eq.  201;  Ross  v.  Humphrey  v.  Irvin  (Pa.),  18  Wkly. 
Butler,  19  N.  J.  Eq.  294,  97  Am.  Dec.  N.  C.  449,  451,  3  Sad.  272,  6  Atl. 
654;  Walter  v.  Selfe,  4  DeG.  &  S.  315,  479,    4    Cent.    687. 

15  Jur.  416,  20  L.  J.  Ch.  433.  109.  Cooper  v.  Randall,  53  111.  24. 

108.  Casebeer  v.  Mowry,  55  Pa.  110.  Dorman  v.  Ames,  12  Minn. 
St.   419,  423,   93   Am.   Dec.   766    (ap-       451,   Gilf.    347,    358. 

plied    to    flooding    plaintiffs     land);  111.  Wesson    v.     Washburn     Iron 

Humphrey   v.  Irvin    (Pa.),   18   Wkly.  Co.,  13  Allen  (Mass.)  95.  102,  90  Am. 

N.   C.   449,   451,   3   Sad.   272,    6   Atl.  Dec.  181,  per  Bigelow,  C.  J. 

479.  112.  Fislior  v.  Clark,  41  Barb.  (N. 

In    a   special     action     on   the    case  Y.)    329,  331;   Pickard  v.  Collins,  23 

for    overflowing    plaintiff's   land,    "In  Barb.    (N.   Y. )    444.      Robert   v.   Les 

which   the  nature  and   the   extent  of  Cure  et  Marguilliers,  etc.,  Rap.  Jud. 

the   alleged    injury   are   specially   de-  Quebec,  9   S.  C.  489.     See  Mahan  v. 

scribed  in  the  declaration,  the  plaintiff  Brown,  13  Wend.   (N.  Y.)  261,  264,  28 

is   entitled  to   a   verdict  for   nominal  Am.  Dec.  461,  per  Savage,  Ch.  J. 

damages,  though  he  fail  to  prove  the  113.  Cropsey  v.  Murphy,    1    Hilt, 

particular    injury    complained    of    or  (N.  Y.)   126,  127,  per  Brady,  J. 
any    other  actual   injury."     Syllabus 

69 


§  39  Fundamental  and  General  Principles. 

that  the  injury  complained  of  must  be  direct  and  not  merely  con- 
sequential.114 But,  although  in  England  a  distinction  is  taken 
between  direct  and  consequential  damage,  yet  if  a  private  person 
suffers  some  extraordinary  damage  beyond  other  citizens  from  a 
public  nuisance,  he  is  entitled  to  an  action,  even  if  his  special  dam- 
age be  consequential.115  So,  the  weight  of  authority,  at  the  present 
day,  sustains  the  position  that  it  is  sufficient  to  maintain  a  private 
action  for  the  erection  of  a  nuisance,  upon  a  public  highway,  if 
there  be  peculior  or  special  damage  resulting  therefrom,  though 
consequential  and  not  direct  ;116  and  the  rule  seems  to  be  that  recov- 
ery may  be  had  for  the  injury  where  the  damage  is  either  direct 
or  consequential.117  In  equity  there  must  be  both  injury  and  dam- 
age to  warrant  an  injunction  ;118  and  ordinarily  a  material  or  sub- 
stantial injury  or  damage  must  be  shown  to  justify  granting  such 
relief,  otherwise  the  party  will  be  left  to  his  remedy  at  law,  as  a 
merely  nominal  injury  or  damage  will  not  warrant  the  issuance  of 
an  injunction  against  a  nuisance.119  If  a  nuisance  has,  however, 
been  established  at  law,  and  the  damages  recovered  in  such  action 
are  merely  nominal  and  inadequate  to  prevent  the  repetition  of  an 
injury  where  the  nuisance  is  of  a  continuous  and  constantly  recur- 

114.  Gwin  v.   Melmoth,   1    Freem.  ticular  injury.       Lansing  v.  Smith,  4 
Ch.   (Miss.)   505,  507.  Wend.   (N.  Y.)  9,25. 

115.  Pittsburgh  v.  Scott,  1  Pa.  St.  The  damage  need  not  be  direct, 
309,  319,  320.  it  is  sufficient  that  it  is  consequential. 

116.  Baxter    v.    Winooski     Turn-  Hughes  v.  Heiser,  1  Bin.    (Pa.)    463, 
pike  Co.,  22  Vt.  114,  122,  22  Am.  Dec.  2   Am.  Dec.  459. 

84.  118.  Rhodes    v.    Dunbar,    57    Pa. 

117.  Colstrum    v.    Minneapolis    &      274,  98  Am.  Dec.  221. 

St.  Louis  Ry.  Co.,  33  Minn.  516,  24  119.  Clifton   Iron    Works   v.   Dye, 

N.  W.  255,  Gen.  Stat.  1878,  c.  75,  §  87    Ala.    468,    470,    6    So.    192,     per 

44.  Stone,   C.    J.      Owen  v.    Phillips,    73 

Where  a  person  suffers  special  Ind.  284 ;     Bernheimer  v.  Manhattan 

damage,    either    direct    or    conse-  Ry.  Co.,  13  N.  Y.  Supp.  913,  26  Abb. 

quential  from  a  nuisance  he  can  re-  N.    C.   88;    Salvin   v.   North    Brance- 

cover.    Adama  Hotel  Co.  v.  Cobb,  Ind.  peth  Coal  Co.,  L.  R.  9  Ch.  705,  44  L. 

Ty.  1899,  53  S.  W.  478,  481.  J.  Ch.   149.  31   L.   T.   154,  22   W.   R. 

Every  person  who  suffers  dam-  904. 

ages,  whether  direct  or  consequen-  See    Smith     v.      Ingersoll-Sergeant 

tial   from   a   common  nuisance,    may  Rock  Drill  Co.,  33  N.  Y.  Supp.  70,  12 

maintain  an  action  for  his  own  par-  Misc.  5,  reversing  27  N.  Y.  Supp.  907, 

7  Misc.  374. 

70 


Fundamental  and  General  Principles. 


40 


ring  nature,  a  court  of  equity  will  interfere  and  grant  relief.120 
And  the  amount  of  the  damage  measured  by  a  money  standard  will 
be  immaterial  in  equity,  where  it  is  sought  to  restrain  the  continu- 
ance of  a  nuisance  per  se  by  mandatory  injunction,  such  nuisance 
being  an  injury  to  a  right.121  Again,  upon  a  bill  for  an  injunction, 
the  court  said  that  one  of  the  questions  was  whether  or  not,  upon 
the  balance  of  the  conflicting,  evidence,  sufficient  evidence  of  the 
actual  injury  to  plaintiff  existed  to  justify  its  interference.  If 
there  was,  it  was  the  duty  of  the  court  to  protect  the  plaintiff 
against  what,  upon  evidence  of  such  injury,  would  be  a  wrongful 
act.122 


§  40.  Impairment  of,  or  diminution  in  value  of  property. — 
Impairment  of,  or  diminution  in  value  of  property,  occasioned  by 
a  nuisance,  may  be  a  proper  factor  in  considering  an 
application  for  an  injunction,  or  as  a  ground  for  main- 
tainance  of  an  action,124  and  is  an  element  of  damages,125  or  is  the 
measure  or  limitation  thereof  in  some  cases.126  Depreciation  in 
value  may  also  be  considered  as  an  element  of  damages  in  con- 
nection with  other  elements,127  and  also  in  cases'  of  permanent 


120.  Paddock  v.  Somes,  102  Mo 
226,  240,  10  L.  R.  A.  254,  14  S.  W. 
746. 

121.  Learned  v.  Castle,  78  Cal. 
454,   18  Pac.  872,  21   Pac.   11. 

122.  Beardmore  v.  Tredwell,  7  L. 
T.  N.  S.  207,  208,  3  Giff.  683,  31  L. 
J.  Ch.  892,  9  Jur.  N.  S.  272. 

123.  See  §  41  herein. 

124.  Owen  v.  Phillips,  73  Ind.  284, 
294;  Quinn  v.  Chicago,  Burlington  & 
Quincy  R.  Co.,  63  Iowa,  510,  19  N.  W. 
336. 

125.  Quinn  v.  Chicago,  Burlington 
&  Quincy  R.  Co.,  63  Iowa,  510,  19  N. 
W.  336;  Givens  v.  Van  Studdiford, 
86  Mo.  149,  56  Am.  Rep.  421,  4  Mo. 
App.  498;  Babb  v.  Curators  of  Uni- 
versity of  State  of  Missouri,  40  Mo. 
App.  173;  Stevenson  v.  Ebervale  Coal 


Co.,  203  Pa.  316,  52  Atl.  201,  201 
Pa.  112,  50  Atl.  201,  88  Am.  St.  Rep. 
805;  Daniel  v.  Fort  Worth  &  R.  G. 
Ry.  Co.,  96  Tex.  327,  72  S.  W.  578. 

126.  Elizabethtown,  Lexington  & 
Big  Sandy  R.  Co.  v.  Combs,  10  Bush. 
(73  Ky.)  382,  19  Am.  Rep.  67;  Stev- 
enson v.  Ebervale  Coal  Co.,  203  Pa. 
316,  52  Atl.  201,  201  Pa.  112,  50  Atl. 
818,  88  Am.  St.  Rep.   805. 

Missouri,  K.  &  T.  Ry.  Co.  v.  Mc- 
Gehee,  Tex.  Civ.  App.  1903,  75  S.  W. 
841;  Daniel  v.  Fort  Worth  &  Rio 
Grande  R.  Co.,  Tex.  Civ.  App.  1002, 
69  S.  W.  198.  See  Hockadav  v. 
Wortham,  22  Tex.  Civ.  App.  419,  54 
S.  W.  1094;  Houghton  v.  Bankhard, 
3  Law  T.  N.  S.  266. 

127.  Givens  v.  Van  Studdiford, 
86  Mo.  149,  56  Am.  Rep.  421 ;  Givens 


71 


§40 


Fundamental  and  General  Principles. 


injury,128  and  it  is  sufficient  that  there  has  been,  or  is,  a  substan- 
tial impairment  or  depreciation  in  value;129  although  it  must  be 
such  an  injury  as  to  visibly  diminish  the  value  of  property.130  And 
upon  the  question  of  the  real  value  of  the  property,  and  also 
whether  or  not  its  impaired  value  was  due  entirely  to  the  alleged 
injuries,  it  may  be  shown  that  other  causes  than  those  alleged, 
contributed  to  such  impairment  of  value.131  It  is  also  sufficient 
that  the  nuisance  is  calculated  directly  to  diminish  the  value  of 
property  for  building  lots,132  for  the  fact  that  the  property  injured 
consists  of  vacant  building  lots  does  not  preclude  recovery,  such 
fact  being  only  a  circumstance  bearing  upon  the  nature 
and  extent  of  the  damage.133  But  it  is  also  decided  that,  in  order 
to  create  a  nuisance,  it  is  not  enough  that  it  diminishes  the  value 
of  surrounding  property,  that  it  renders  other  property  unsalable, 


v.  Van  Studdiford,  4  Mo.  App.  498; 
Buckman  v.  Green,  9  Hun  (N.  Y.) 
225,  229,  230;  Baltimore  &  Potomac 
R.  Co.  v.  Fifth  Baptist  Church,  108 
U.  S.  317,  27  L.  Ed.  739,  2  Sup.  Ct. 
719.  (Holding  that  the  question  of 
damages  does  not  rest  simply  upon 
the  depreciation  of  property  alleged 
to  be  injured,  but  upon  other  factors 
also. ) 

128.  Kanakee  &  Seneca  R.  Co.  v. 
Horan,  131  111.  288,  23  N.  E.  G21; 
Smith  v.  Point  Pleasant  &  Ohio  River 
R.  Co.,  23  W.  Va.  451;  Missouri, 
Kansas  &  Texas  Ry.  Co.  v.  McGehee, 
Tex.  Civ.  App.  1903,  75  S.  W.  841,  See 
Robb  v.  Carnegie,  145  Pa.  324,  27  Am. 
St.  Rep.  694,  22  Atl.  649,  14  L.  R.  A. 
329.  Compare  Barrick  v.  Schiffer- 
decker,  123  N.  Y.  52,  33  N.  Y.  St.  R. 
485,  25  N.  E.  365,  rev'g  48  Hun,  355, 
16  N.  Y.  St.  R.  449,  1  N.  Y.  Supp. 
21;  Van  Veghten  v.  Hudson  River 
Power  Transmission  Co.,  92  N.  Y. 
Supp.  956;  Thayer  v.  Brooks,  17  Ohio, 
489,  493,  49  Am.  Dec.  474.  As  to  con- 
tinuing nuisance  generally,  see  Pinney 
v.  Berry,  61  Mo.  359;   City  of  Mans- 


field  v.   Hunt,    19    Ohio   Cir.    Ct.    R. 
488,    11   Ohio  C.   D.   567. 

129.  Campbell  v.  Seaman,  2 
Thomp.  &  C.  (N.  Y.)  231,  aff'd  63  N. 
Y.  568,  20  Am.  Rep.  567;  Cropsey  v. 
Murphy,  1  Hilt.  (N.  Y.)  126,  127,  per 
Brady,  J.;  Ryan  v.  Copes,  11  Rich. 
L.  (S.  C.)  217,  73  Am.  Dec.  106  (a 
case  of  a  threatened  peculiar  danger 
alleged  to  have  occasioned  loss  by 
depreciation  of  property  and  annoy- 
ance  of   litigation). 

130.  St.  Helens  Smelting  Co.  v. 
Tipping,  11  Jur.  N.  S.  735,  11  H.  L. 
Cas.  642,  13  W.  R.  1083,  35  L.  J.  Q. 
B.  66,   12  L.  T.  776. 

131.  Stevenson  v.  Ebervale  Coal 
Co.,  201  Pa.  St.  112,  50  Atl.  818,  S8 
Am.  St.  Rep.  805. 

132.  Peck  v.  Elder,  3  Sandf.  (X. 
Y.)  126,  129,  per  Chancellor  Wal- 
worth, S.  C.  See  Baltimore  City  v. 
Fairfield  Improvement  Co.,  87  Md. 
352,  359,  40  L.  R.  A.  494,  39  Atl. 
1081,  67  Am.  St.  Rep.  344.  See 
Dane  v.  Valentine,  5  Mete.  (Mass.)   8. 

133.  Ruckman  v.  Green,  9  Hun 
(N.  Y.),  225,  229. 


72 


Fundamental,  and  General  Principles.  §  40 

or  that  it  prevents  one  from  letting  his  premises  for  as  largo  a 
rent  as  before,  or  to  as  responsible  tenants.  It  must  be  such  a 
use  as  produces  a  tangible  or  appreciable  injury,  or,  as  to  render 
its  enjoyment  essentially  uncomfortable  or  inconvenient.134  So, 
it  is  said  in  a  Texas  case  that  "  depreciation  in  value  of  plaintiff's 
property,  and  of  its  use,  was  the  natural  and  necessary  conse- 
quence of  the  nuisance ;  but  the  failure  of  plaintiff  to  sell  his  prop- 
erty at  a  price  greater  than  he  will  be  able  to  sell  it  for  after  the 
nuisance  is  abated,  is  not  a  natural  or  necessary  consequence 
of  it."135  But,  although  it  may  be  true,  as  a  general  rule,  that 
such  acts  as  result  in  a  mere  diminution  of  the  value  of  properly, 
which  can  be  fully  and  readily  compensated  in  damages,  will  not 
supply  grounds  for  an  injunction,  and  parties  will  be  left  to  the 
redres's  afforded  by  an  action  for  damages,136  nevertheless  impair- 
ment of  value  may  constitute  a  ground  for  equitable  relief,137  where 
an  existing  or  threatened  nuisance  has,  or  will  seriously  and  ma- 
terially impair  the  value  of  property  and  interfere  with  its  ordi- 
nary comfort  and  enjoyment.138  But  although  damage  to  private 
property  may  be,  it  is  not  necessarily  a  ground  of  equitable 
relief,139  as  a  mere  depreciation  in  value  of  such  property  by  a 

134.  Flood  v.  Consumers'  Co.,  105  is  said  that  regard  must  be  had  to 
111.  App.  559,  562,  per  Burke,  J.  See  the  effect  of  the  nuisance  upon  the 
Canal  Melting  Co.  v.  Columbia  Park  value  of  the  estate  and  the  prospect 
Co.,  99  111.  App.  215.  Compare,  how-  of  dealing  with  it  to  advantage,  in 
ever,  Ruckman  v.  Green,  9  Hun  (N.  granting  relief  by  injunction,  per 
Y,).  225,  229,  230.  Lord  Justice  Turner.      See  Houghton 

135.  Commings  &  Geisler  v.  Stev-  v.  Bankhard,  3  L.  T.  N.  S. 
enson,  76  Tex.  642,  645,  135  S.  W.  266.  See  generally  Schaidt  v.  Blaul, 
646-  66    Md.     141,    6    Atl.    669,    5    Cent. 

136.  Owen    v.    Phillips,    73     Ind.  580. 

284,  294,  per  Elliott,  J.  138.  Adams    v.    Michael,    38    Md. 

137.  Adams  v.  Ohio  Falls  Car  Co.,  123,  17  Am.  Rep.  516.  See,  also, 
131  Ind.  375,  31  N.  E.  57;  Baltimore  Baltimore  v.  Fairfield  Improvement 
v.  Fairfield  Improvement  Co.,  87  Md.  Co.,  87  Md.  352,  40  L.  R.  A.  494,  39 
352,  359,  360,  40  L.  R.  A.  494,  39  Atl.  Atl.    1081. 

1081,    67    Am.    St.    Rep.    344.      Gold-  139.  Haggart  v.  Stehlin,   137   Ind. 

smid  v.  Tunbridge  Wells  Improvement  43,   35   N.   E.   997,   22  L.  R.   A.   .")". 

Commissioners,  35  C.  J.  Ch.  382,  384,  (holding  that  nuisance  existed  to  pri- 

12  Jur  N.  S.  308,  14  W.  R.   562,  L.  vate  property,  and  that  complaint  for 

R.  1  Ch.  349,   14  L.  T.  154,  where  it  damages    and    an    injunction    stated 


<j  40  Fundamental  and  General  Principles. 

nuisance  is  not  a  sufficient  foundation  for  such  relief  without  irre- 
parable injury  ;140  but  an  action  for  damages  may  lie.141  ■  The  char- 
acter of  the  injury  may,  however,  be  such  as  to  even  preclude  evi- 
dence of  the  diminished  value  of  property  as  in  case  of  a  street 
obstruction,142  or  the  operation  of  a  balcery,  and  the  averments  of 
the  declaration  may  be  such  that  evidence  will  be  inadmissible  to 
enhance  the  damages  by  showing  that  the  value  of  property  has 
been  diminished  by  offensive  odors.143  So,  mere  diminution  in 
value  may  operate  as  damnum  absque  injuria,  invading  no  legal 
right,  and  not  of  itself  constitute  a  nuisance ;  and  in  cases  of  un- 
questioned public  nuisance  mere  diminution  in  value  of  the  prop- 
erty of  a  complainant,  alleging  special  injury,  by  the  nuisance, 
without  irreparable  mischief,  will  not  furnish  any  foundation  for 
equitable  relief.144  So,  there  may  be  no  such  impairment  of  a  legal 
right  as  to  constitute  a  nuisance  even  though  the  value  of  property 
is  depreciated.145  Nor  does  a  nuisance  exist  under  circumstances 
which  would  operate  to  deprive  one  of  the  use  of  property  without 
compensation,  even  though  the  alleged  injurious  act  might  have  a 
tendency  to  diminish  the  value  of  plaintiff's  property.146  And  the 
fact  that  a  steamboat  line,  established  before  a  railroad,  between 
the  same  termini,  was  built,  has  its  traffic  thereby  diverted  and  the 

good    cause    of    action);    Stillwell   v.  141.  Haggart  v.   Stehlin,   137  Ind. 

Buffalo  Riding  Academy,  21  Abb.  N.  43,  22  L.  R.  A.  577,  35  N.  E.  997. 

C.  (N.  Y.)  472,  4  N.  Y.  Supp.  414,  (a  142.  Hopkins  v.   Western  Pac.   R. 

case  of  erection  of  building,  but  not  Co.,  50  Cal.  190. 

given    over   to    injurious   use).      See  142a.  Alexander  v.  Stewart  Bread 

Harrison  v.  Good,  L.  R.   11  Eq.  338,  Co.,  21  Pa.  Super.  Ct.  526. 

353,  40  L.  J.  Ch.  294,  19  W.  R.  346,  143.  Johnson  v.   Porter,  42  Conn. 

24  L.  T.  263.  234. 

140.  Shivery  v.  Streeper,    24  Fla.  144.  Morris    &    Essex   Rd.    Co.   v. 

103,  3  So.  865;  Canal  Melting  Co.  v.  Prudden,    20    N.    J.     Eq.     530,    537; 

Columbia  Park  Co.,  99  111.  App.  215;  Zabriskie  v.  Jersey  City  &  Bergen  Rd. 

Halsey    v.    Rapid    Transit    Street    R.  Co.,  13  N.  J.  Eq.  314.    Examine  Har- 

Co.,  47   N.   J.   Eq.   380,  20   Atl.   859,  rison   v.  Good,  L.  R.   11   Eq.   338,  24 

46  Am.  &  Eng.  R.  Cas.  76;  Zabriskie  L.  T.  263,  40  L.  J.  Ch.  294,  19  W.  R. 

v.   Jersey  City  &   Bergen   R.   Co.,    13  346. 

N.  J.  Eq.  314;   Rhodes  v.  Dunbar,  57  145.  Pickard  v.   Collins,   23   Barb. 

Pa.  274,  98  Am.  Dec.  221.     See  Nel-  (N.  Y.)    444. 

son  v.  Milligan,  151  111.  462;  Robb  v.  146.  Quintini   v.    Bay    St.    Louis, 

Carnegie,  145  Pa.  324,  14  L.  R.  A.  329,  64  Miss.  483,  491,  1  So.  625. 
22  Atl.  649,  27  Am.  St.  Rep.  694. 

74 


Fundamental,  and  General  Principles. 


§±1 


use  and  enjoyment  of  its  property  depreciated,  does  not  make  such, 
railroad  a  private  nuisance  even  though  it  was  wrongfully  con- 
structed on  State  property.147 

§  41.  Depreciation  in  or  diminished  rental  value. — An  act 
which  depreciates  or  diminishes  the  rental  value  of  premises  may 
constitute  a  nuisance,148  and  such  diminished  rental  value  may  he 
recovered,  and  is  an  element  of  damages,  or  the  measure  thereof 
according  to  the  circumstances,149  as  other  elements  may  also  be 
considered.150  So,  evidence  is  admissible  to  show  such  deprecia- 
tion of  rental  value,151  although  it  is  decided  that  such  deprecia- 


147.  Old  Forge  Co.  v.  Webb,  57  N. 
Y.  App.  Div.  636,  68  N.  Y.  Supp. 
1145,  affg.  65  N.  Y.  Supp.  503,  31 
Misc.   316. 

148.  McKeon  v.  See,  4  Rob.  (N. 
Y.)    449. 

149.  City  of  Eufaula  v.  Simmons, 
86  Ala.  515,  6  So.  47,  (measure  of 
damages)  ;  Holbrook  v.  Griffis,  Iowa, 
1905,  103  N.  W.  479,  (rule  in  tem- 
porary nuisance  as  to  meausre  of 
damages)  ;  Hollenbeek  v.  City  of  Ma- 
rion, 116  Iowa,  69,  89  N.  W.  210 
(measure  of  damages)  ;  Shively  v. 
Cedar  Rapids,  Iowa  Falls  &  North- 
western R.  Co.,  74  Iowa,  169,  7  Am. 
St.  Rep.  471,  37  N.  W.  133  (measure 
of  damages)  ;  Givens  v.  Van  Studdi- 
ford,  86  Mo.  149,  56  Am.  Rep.  44 
(proper  element  of  damages)  ;  Fran- 
cis v.  Schoelkopf,  53  N.  Y.  153  (meas- 
ure of  damages)  ;  Peck  v.  Elder,  3 
Sandf.  (N.  Y.)  126,  129  (per  Chan- 
cellor Walworth,  S.  C.)  ;  Garrett  v. 
Wood,  55  N.  Y.  App.  Div.  281,  67 
N.  Y.  Supp.  122  (measure  of  dam- 
ages) ;  Michel  v.  Munroe  County  Su- 
pervisors, 39  Hun  (N.  Y.),  47,  48 
("  Seems  to  be  a  just  measure  of  dam- 
ages" for  polluting  waters  of  ditch)  ; 
Beir  v.  Cooke,   37   Hun    (N.  Y.),  38 


(difference  between  rental  value  free 
from  and  subject  to  nuisance  recover- 
able) ;  Herbert  v.  Rainey,  162  Pa. 
525,  34  W.  N.  C.  494,  29  Atl.  725 
(entire  rental  value  recoverable)  ; 
Commings  &  Geisler  v.  Stevenson,  76 
Tex.  642,  13  S.  W.  646  (rental  value 
is  measure  of  damages)  ;  Snyder  v. 
Cabell,  29  W.  Va.  48,  1  S.  E.  241 
(where  tenements  are  lessened  in 
value  suit  lies  to  restrain  nuisance  i. 
See  Langfeldt  v.  McGiath,  33  111. 
App.  158;  Wesson  v.  Washburn  Iron 
Co.,  13  Allen  (95  Mass.).  95,  100,  90 
Am.  Dec.  181;  Bly  v.  Edison  Electric 
Illuminating  Co.,  i72  N.  Y.  1,  58  L. 
R.  A.  500,  64  N.  E.  745,  rev'g  54  N. 
Y.  App.  Div.  427,  66  N.  Y.  Supp 
737;  Joyce  on  Damages,  §  2150.  Com- 
pare Gempp  v.  Bassham.  60  111.  App. 
84. 

150.  Loughram  v.  City  of  Des 
Moines,  72  Iowa,  382,  34  N.  W.  172; 
City  of  Mansfield  v.  Hunt,  19  Ohio 
Cir.  Ct.  R.  488,  10  Ohio  C.  D.  567. 

151.  Swift  v.  Broyles,  115  Ga. 
885,  425  E.  277  (proof  of  deprecia- 
tion in  rental  value  a  proper  guide)  ; 
Savannah,  Florida  &  Western  Ry.  Co. 
v.  Parish,  117  Ga.  893,  45  S.  E.  280; 
Hollenbeek    v.     City    of    Marion,    lfB 


•id 


§§  42,  43       Fundamental  and  General  Principles. 

tion  must  be  alleged  in  order  to  admit  proof  thereof;152  but  the 
recovery  is  limited  as  to  time  or  duration.153  Diminution  in  rental 
value  may,  however,  be  an  insufficient  basis  of  recovery  or  dam- 
ages.154 And  where  the  injury  is  not  tangible  or  appreciable  it  is 
held  not  enough  that  the  alleged  nuisance  prevents  one  from  let- 
ting his  premises  for  as  large  a  rent  as  before  or  to  as  responsi- 
ble tenants.155 

§  42.  No  distinction  of  classes. —  The  law  knows  no  distinction 
of  classes  and  extends  its  protection  to  any  citizen  or  class  of  citi- 
zens against  wrougs  and  grievances  even  though  others  might  per- 
haps endure  them  without  suffering  discomfort'.  This  principle 
applies  to  nuisances,156  and  there  is  no  principle  in  law,  or  the 
reasons  on  which  its  rules  are  founded,  which  should  give  pro- 
tection to  the  large  comforts  and  enjoyments  with  which  the 
wealthy  and  luxurious  are  surrounded,  and  fail  to  secure  to  the 
artisan  and  laborer,  and  their  families,  the  fewer  and  more  re- 
stricted comforts  which  they  enjoy.157 

§  43.  Rule  that  motive  or  intent  unimportant  and  exceptions 
to  or  qualifications  thereof.157* — Generally  the  motives  of  parties 
cannot  be  inquired  into  where  they  have  been  exer- 
cising their  legal  rights  or  where  the  act  is  legal  in  it- 
self;158 and  where  one  has  not  been  deprived  of  a  legal 
right   whether   the  motives   of  the   defendant   are   good   or   bad 

Iowa,   69,   89   N.    W.   210;    Chamber-  155.  Flood  v.  Consumers'  Co.,   105 

lain    v.     Missouri     Electric    Light  &  III.  App.  559,  562,  per  Burke,  J. 

Power  Co.,  158  Mo.  1,  57  S.  W.  1021;  156.  Cleveland    v.     Citizens'     Gas 

Umscheid    v.    City    of    San    Antonio,  Light  Co.,  20  N.  J.  Eq.  201,  206. 

Tex.   Civ.   App.   1902,  69   S.   W.    496.  157.  Ross  v.  Butler,   19  N.  J.  Eq. 

See  Pettit  v.  Town  of  Grand  Junction  294,  306,   97   Am.  Dec.   654,   per   The 

(Iowa,  1903),  93  N.  W.  381.  Chancellor. 

152.  Potter  v.  Froment,  47  Cal  157a.  See  §  94,  herein,  as  to  trade 
163.  or  business. 

153.  See  Joyce  on  Damages,  158.  People  v.  Albany  &  Susque- 
§  2150.  See,  also,  chapter  herein  on  hanna  Rd.  Co.,  57  Barb.  (N.  Y.) 
measure    of   damages.  204,  219,  2  Lans.  459,  case  affirms  8 

154.  Gilson  v.  Donk,  7  Mo.  App  Abb.  N.  S.  132,  39  How.  49,  and  is 
37;  Ross  v.  Butler,  19  N.  J.  Eq.  274  affd.  57  X.  161.  The  question  in- 
97  Am.  Dec.  654.  See  Smith  v.  Phil-  volved  here,  however,  was  an  appeal 
lips,  8  Phila.    (Pa.)    10.  from  an  order  at  special  term  to  set 

76 


Fundamental  and  General.  Pklwcipl.es.  §  43 

is  unimportant.159     So,  in  determining  whether  or  not  a  nuisance 
has  been  committed  the  motive  or  intent  with  which  defendant  did 
the  act  complained  of  will  not  be  considered.     If  a  nuisance  is 
created  by  his  acts  it  is  immaterial  how  innocent  the  intent  was  for 
the  element  of  motive  or  intent  does  not  enter  into  the  question 
of  nuis'ance,  otherwise  the  maxim  sic  utere  tuo  ut  alienum  non 
laedas  would  be  unwarrantably  limited.160     So,  in  an  English  case 
the  court  says:  "  '  It  has  been  contended  that  to  render  the  defend- 
ant liable,  it  must  be  his  object  to  create  a  nuisance,  or  else  that 
that  must  be  the  necessary  and  inevitable  result  of  his  act.     No 
doubt  it  was  not  his  object ;  but  I  do  not  agree  with  the  other  posi- 
tion, because  if  it  be  the  probable  consequence  of  his  act  he  is 
answerable  as  if  it  were  his  actual  object.     If  the  experience  of 
mankind  must  lead  any  one  to  expect  the  result  he  will  be  answer- 
able for  it.'  "1G1     If  an  improvement,  such  as  the  erection  of  build- 
ings, is  in  itself  legitimate  and  lawful,  and  not  per  se  a  nuisance, 
the  fact  that  the  erection  is  from  spite  will  not  subject  the  party 
making  such  erection  to  restraint  by  the  courts,  the  law  will  not 
inquire  into  the  motives  with  which  he  acts,  provided  he  keeps 
within   the  limits   of  legal  action.162     So  a  wrong  and  unlawful 
motive  in  erecting  a  building  otherwise  lawful,  does  not  make  the 
building  itself  a  nuisance.163     If  a  building  is  so  located  that  it 
injures  another  by  shutting  off  his  light,  and  is  erected  for  a  use- 
aside   all    proceedings   upon    an    "  al-       Bonnell    v.    Smith   &   Bro.,    53    Iowa, 
leged  judgment"   directing  a  receiver      281,   5   N.   W.    1281,   the   court   said: 
in    relation    to    possession    of    certain       "  The  best   intentions   cannot  prevent 
property,  etc.    Chatfield  v.  Wilson,  28      an  act  from  being  a  nuisance  where  it 
Vt.  49    (a  case  only  of  underground      otherwise  is  such,  and  the  worst  in- 
waters..  tentions  cannot  make  an  act  a  nuis- 

159.  Italian   v.    Brown,   23   Wend.      ance  where  it  otherwise  is  not." 

(N.  Y.)  261,  28  Am.  Dec.  401.  161.  Walker  v.  Brewster,  L.   R.  5 

"The   current     of    the    authorities  Eq.  Cas.  25,  33  per  Sir  W.  Page  Wood, 

seems  to  be,  that  if  any  one  does  a  V.    C,    quoting     Lord     Tenterdon    in 

lawful   act   on   his   own   property  the  Bex  v.  Moore,  3  B.  &  Ad.  184. 

motive  for  the  act  is  in  law  a  mat-  162.  Falloon  v.  Schilling,  29  Kan. 

ter  of  indifference."   Medford  v.  Levy,  292,  290,  297,  44  Am.  Rep.  642. 

31  W.  Va.  649,  054,  13  Am.  St.  Rep.  163.  Chenango  Bridge  Co.  v.  Paige, 

887,  8  S.  E.  302,  2  L.  R.  A.  308.  83   N.   Y.    178,   188,   per   Earl   J.  De- 

160.  People  v.  Burtleson,  14  Utah,  pierris   v.    Mattern,    10   N.    Y.    Supp. 
258,  263,  47  Pac.  87,  per  Bartch,  J.;  626. 

77 


§  43  Fundamental  and  General  Principles. 

ful  purpose,  the  fact  that  it  was  located  from  spite  or  malicious 
motives  is  of  no  consequence,104  otherwise  where  a  structure  serves 
no  useful  purpose  but  is  erected  solely  from  malicious  motives.165 
Again,  the  liability  of  defendant  in  erecting  a  fence  which  ob- 
structs plaintiff's  light  ought  not  to  depend  upon  the  motive  with 
which  such  erection  was  made),  as  bad  motives  in  doing  an 
act  cannot  constitute  a  ground  of  action  where  such  act  violates  no 
legal  rights  of  another."6  So,  upon  the  question  whether  the  keep- 
ing of  bees  is  a  nuisance,  the  issue  is  not  as  to  defendant's  motives 
nor  as  to  their  knowledge  of  any  vicious  propensities!  of  the  bees, 
but  whether  under  the  existing  condition  of  things,  then  and  before, 
a  nuisance  existed.167  Where  there  has  been  no  attempt  to  show, 
and  it  is  not  claimed,  that  defendant's  acts  in  constructing  a  dam 
above  a  certain  height  were  wilfully  committed,  evidence  offered 
by  defendant  to  show  that  such  acts  were  not  wilful,  is  inadmis- 
sible.168 And  when  plaintiff  shows  a  public  nuisance,  with  special 
damage  to  himself,  his  motives  in  filing  the  bill,  or  in  prosecuting 
his  suit,  cannot  be  inquired  into.169  If  a  statute  expressly  specifies 
a  certain  act  as  constituting  a  nuisance  when  a  prejudice  to  others, 
it  is  immaterial  whether  the  defendant  intended  the  prejudicial 
result  to  others  or  not,  if  such  result  flows  from  his  unlawful  acts, 
as  every  man  is  presumed  to  intend  the  natural  and  probable  con- 
sequences of  his  act170  So,  where  a  city  ordinance  aims  to  pre- 
vent a  nuisance  by  prohibiting  certain  acts,  the  intent  with  which 
the  prohibited  act  is  done  is  immaterial.171  Where,  however,  a 
statute  provides  than  an  injunction  may  issue  against  the  mal- 
icious erection  of  any  structure  intended  to  annoy  and  injure  the 
proprietor  of  adjacent  land  in  respect  to  his  use  or  disposition 

164.  Kuzniak  v.   Kozminski,     107  168.  Finch    v.     Green,     16    Minn. 
Mich.  444,  61  Am.   St.   Rep.   344,   65      355    (Gilf.  315). 

N.    W.   275,   28    Chicago   Leg.   News,  169.  Lippincott  v.   Lasher,   44   N. 

166,  2  Det.  L.  N.  713.  J-   Eq.   120,   14  Atl.   103.     The   ques- 

165.  Flaherty  v.  Moran,  81  Mich.  tion  of  motive   arose  upon  the  point 
52,  21  Am.  St.  Rep.  510,  8  L.  R.  A.  of  costs  or  fees. 

183    45  N.  W.  381.  170-  Secord    v.    The    People,     121 

166.  Pickard  v.  Collins,  23  Barb.      111.  623,  13  N.  E.  194. 

(TST.  Y.)  444,  459.  171-  Brady  v-  steel  &  Spring  Co., 

167.  Olmstead    v.    Rice,    6    N.    Y.       102  Mich.  277,  26  L.  R.  A.  175,  60  N* 
Supp.  826,  828,  25  N.  Y.  St.  R.  271,      W.  687. 

53  Hun,  638   (mem.). 

78 


Fundamental  and  General  Principles.  §  43 

thereof,  the  malicious  intent  must  be  so  predominating  as  a  motive 
as  to  give  character  to  the  structure.  It  must  be  so  manifest  and 
positive  that  the  real  usefulness  of  the  structure  will  be  as  mani- 
festly subordinate  and  incidental ;  the  structure  intended  by  the 
statute  must  be  one  which  from  its  character,  location  or  use  must 
strike  the  ordinary  beholder  as  manifestly  erected  with  the  leading 
purpose  to  annoy  the  adjoining  owner  or  occupant  in  his  use  of 
his  premises.172  So,  it  must  be  shown  in  conformity  with  the  stat- 
ute, that  the  controlling  motive  in  erecting  a  fence  was  that  of  an- 
noyance.173 But  it  is  not  necessary  that  any  criminal  intent  what- 
ever should  exist  to  convict  one  of  a  nuisance.  If  a  person  creates 
and  maintains  a  public  nuisance,  he  is  guilty  of  the  offense  even 
though  he  has  done  so  with  the  best  intentions.174  And  it  is  decided 
that  a  master,  or  owner  of  works,  carried  on  for  his  profit  by  his 
agents  or  servants,  is  liable  to  be  indicted  for  a  public  nuisance 
caused  by  acts  of  his  workmen  in  carrying  on  the  works,  though 
done  by  them  without  his  knowledge  and  contrary  to  his  general 
orders.175  It  is  held,  however,  that  motive  or  intent  may  be  impor- 
tant; thus  while  under  certain  circumstances,  the  doing  of  certain 
things  by  a  person  in  the  use  of  his  premises  as  a  dwelling  house 
would  not  amount  to  a  private  nuisance,  yet  when  such  things  are 
done  for  the  wilful  or  malicious  purpose  of  annoying  a  neighbor, 
and  they  have  such  effect  and  render  the  latter's  home  uncomfort- 
able, and  destroy  its  peace  and  quiet,  the  doing  may  amount  to  a 
nuisance  which  will  be  restrained  by  a  court  of  equity.176  So,  where 
the  jury  found  that  a  brew  house  and  privy  were  maliciously 
erected  to  deprive  the  plaintiff  of  the  benefit  of  his  habitation  and 
office  and  that  the  plaintiff  was  thereby  damaged,  judgment  was 
given  for  the  plaintiff.177    Again,  the  question  of  motive  or  intent 

1,72.  Gallagher  v.  Dodge,  48  Conn.  land,  22  L.  J.  C.  P.  81,  13  C.  B.  182, 

387,  40   Am.   Rep.    182.  17  Jur.   764;    Barnes    v.    Akroyd,  L. 

173.  Hunt  v.  Coggin,  66  N.  H.  140,  B.   7  Q.  B.  474,  41   L.  J.  M.  C.    110, 

20  Atl.  250,  under  Laws   1887,  c.  91.  26  L.  T.  692,  20  W.  R.  671. 

1,74.  Taylor  v.  People,   6  Parker's  176.  Medford  v.  Levy,  31   W.   Va. 

Crim.  Rep.   (N.  Y.)   347,  351.  649,  656,  13  Am.  St.  Rep.  887,  2  L. 

175.  Queen  v.  Stephens,  7  B.  &  S.  R.  A.  368,  8  S.  E.   302. 
710,  12  Jur.  N.  S.  961,  L.  R.  1  Q.  B.  177.  Jones  v.   Powell,    1    Hutton, 

702,  14  L.  T.  593,   14  W.  R.  859,   10  135,    136. 
Cox  C.  C.  340.     See  Peachey  v.  Row- 

79 


§  44  Fundamental  and  Geneeal  Principles. 

may  be  important  where  equitable  relief  is  sought  by  a  party  in 
case  of  a  public  nuisance,  for  it  is  held  that  an  injunction  ought  not 
to  be  granted  where  the  benefit  secured  by  it  to  one  party  is  but 
of  little  importance,  while  it  will  operate  oppressively  to  the  great 
annoyance  and  injury  of  the  other  party,  unless  the  wrong  com- 
plained of  is  so  wanton  and  unprovoked  in  its  character  as  properly 
to  deprive  the  wrongdoer  of  the  benefit  of  any  consideration  as  to 
its  injurious  consequences.178  The  intention  might  also  be  a  proper 
subject  of  inquiry  upon  the  question  of  exemplary  damages.179 

§  44.  Negligence — Care,  reasonable  care  or  precaution  or  want 
thereof. — Negligence  of  the  defendant  is  not  ordinarily  an  essen- 
tial element  in  an  action  for  damages  sustained  by  reason  of  a 
nuisance.  The  action  is  founded  on  the  wrongful  act  in  creating 
or  maintaining  it,  and  the  negligence  of  the  defendant,  unless  in 
exceptional  cases,  is  not  material.180  So,  as  a  general  rule,  the 
question  of  care  or  want  of  care,  is  not  involved  in  an  action  for 
injuries  resulting  from  a  nuisance  ;1S1  and  the  exercise  of  reason- 
able care  in  the  creation  or  maintenance  of  a  nuisance  can  never  be 
an  absolute  defense  to  an  action  for  an  injury  occasioned  there- 
by.182 So,  it  is  said  in  a  New  York  case:  That  "  no  degree  of  care 
will  excuse  the  creator  of  a  nuisance,  and  for  that  reason  negli- 
gence is  generally  not  regarded  as  a  factor  in  such  case,  though,  as 
these  torts  are  frequently  coexistent,  it  is  at  times  difficult  to  sup- 
press the  appearance  of  negligence,  or  evidence  given  to  explain 
away  its  presence."183     Again,  one  who  habitually  and  knowingly 

178.  Morris  &  Essex  Rd.  Co.  v  31  N.  E.  1024,  per  Andrews,  J.,  case 
-Prudden,  20  N.  J.  Eq.  530,  540.     See      reverses  63  Hun,  32,  43  N.  Y.  St.  R. 

Akers  v.   Marsh,    19   App.    D.   C.    28  592,  22  C.  P.  16,  17  N.  Y.  Supp.  328. 

46,    where    the    court,    in    discussing  181.  Laflin  &  Rand  Powder  Co.  v. 

grounds     for     relief     by     injunction  Tearney,  131  111.  322,  325,  19  Am.  St. 

against     an     alleged     nuisance,     said  Rep.   34,   23   N.   E.   389,   7   L.    R.   A. 

there  was  nothing  in  the  evidence  to  262,  per  Magruder,  J.     Holding  also 

show  that  the  alleged  act  was  wilfully  that    an    objection    that   the   declara- 

done   or   done   with   a    malicious  mo-  tion  does  not  charge  defendant  with 

tive  of  annoying  plaintiff.  negligence  is  not  well  taken. 

179.  Bonnell  v.   Smith  &  Bro.,  53  182.  Wilkinson  v.  Detroit  Steel  & 
Iowa,  281,  5  N.  W.   1281.  Spring  Works,  73  Mich.  408,  418,  41 

180.  Lamming  v.  Galusha,  135  N.  N.  W.  490. 

Y.  239,  242,  47  N.  Y.  St.  R.  831,  832,  183.  Pitcher  v.  Lennon,  74  N.  Y. 

80 


Fundamental  and  (General  Principles.  §  44 

permits  filthy  water  from  a  barn  manure  vault  to  percolate  or  filter 
constantly  into  his  neighbor's  well  and  cellar,  is  liable  in  damages 
for  the  injury  without  other  proof  of  negligence;  for  a  person 
should  use  reasonable  precautions  to  exclude  filthy  water,  from  his 
vault,  from  injuring  his  neighbor's  land  and  property,  and  not  to 
do  so  is  negligence,  there  being  no  pretence  of  unavoidable  acci- 
dent which  could  not  have  been  foreseen  or  guarded  against  with 
due  care.184  And  where  it  becomes  one's  duty  to  do  an  act  in  such 
a  manner  as  not  to  injure  his  neighbor's  property,  as  in  case  of 
closing  a  drain  to  prevent  an  overflow  of  adjoining  land,  he  is 
bound  to  use  ordinary  care,  and  he  is  not  responsible  for  such 
overflow  where  he  exercises  such  care.180  But  an  occupier  of  land 
is  under  no  duty  toward  his  neighbor  periodically  to  cut  the  this- 
tles naturally  growing  on  his  land  so  as  to  prevent  them  from  seed- 
ing ;  and  if,  owing  to  his  neglect  to  cut  them,  the  seeds  are  blown 
on  his  neighbor's  land  and  do  damage,  he  is  not  liable.1S6  So,  un- 
less a  party  can  show  a  right  either  in  the  nature  of  a  presumed 
grant,  or  in  some  other  mode,  to  use  his  property  in  a  particular 
way,  he  cannot  use  it  in  that  particular  way  if  it  occasions  injury 
to  his  neighbors  in  the  quiet  enjoyment  of  their  legal  rights  and 
privileges,  and  if  such  use  constitutes  a  nuisance,  it  is  no  vindica- 
tion that  proper  precautions  were  used  to  prevent  the  injury.ls; 
But  a  thing  which  may  lawfully  be  done  may,  because  of  the  man- 
ner of  doing  it,  become  unlawful,  and  a  person  may  do  a.  lawful 
act  so  carelessly  or  unskillfully  as  to  be  guilty  of  a  nuisance,  and 
an  habitual  failure  to  perform  a  duty  may  constitute  a  nuisance  or 
the  doing  of  a.  thing  habitually,  without  the  reasonable  and  neces- 
sary precautions  to  secure  the  public  safety  may  be  an  indictable 
nuisance.188     So  a  private  sewer  may  be  so  negligently  constructed 

St.  R.   817,  38  N.  Y.  Supp.    100,   16  said  cellar  and  well,  tainting  the  wa- 

M.  609,  per  McAdam,  J.;   case  aff'd  ter  and  rendering  the  cellar  unwhole- 

12   N.   Y.   App.   Div.   356,   42   N.  Y.  some). 

Supp.   156.  185.  Rockwood  v.  Wilson,  11  Cush. 

184.  Ball    v.    Nye,    99   Mass.    582,  (65  Mass.)    221. 

97  Am.  Dec.  56  (an  action  of  tort  al-  186.  Giles  v.  Walker,  L.  R.  24  Q. 

leging  injury  to  plaintiff's  cellar  and  B.  D.  656. 

well,  by  wilfully  and  negligently  caus-  187.  Scott  v.  Bay,  3  Md.  431,  445, 

ing  and  permitting  filthy  water  from  446,  per  Mason,  J. 

a   barn  vault  to   be  discharged  into  188.  L.  &  N.  R.  R.  Co.  v.  Common- 

81 


§  45  Fundamental  and  Genebal  Principles. 

as  to  constitute  a  private  nuisance,189  and  a  house  may  be  kept  so 
negligently  and  in  such  a  filthy  condition  as  to  be  a  nuisance.190 
The  manner  of  conducting  a  business  may  also  make  it  a  nuis- 
ance.191 So,  an  act  which  is  not  a  nuisance  per  se  may  be  so  negli- 
gently done  as  to  become  a  nuisance.  Negligence,  therefore,  must 
be  shown  in  cases  of  such  character  to  entitle  plaintiff  to  recover 
damages,192  for,  as  will  appear  hereafter  under  the  propsr  headings, 
there  are  certain  casss  in  which  negligence  must  be  averred  in 
order  to  recover  for  the  alleged  nuisance.  But  the  neglect  of  the 
State  to  keep  a  public  dam  in  good  preservation  does  not  take  away 
its  public  character  or  authorize  its  destruction  by  individuals  as 
being  a  public  nuisance.193 

§  45.  Contributory  negligence — Prevention  of  injury  or  dam- 
age by  plaintiff. — It  is  a  general  rule,  ordinarily  applicable,  that 
the  law  of  contributory  negligence  has  no  place  in  an  action  to 
recover  damages  for  a  nuisance.194  The  doctrine  of  contributory 
negligence  implies  the  wrongful  act  or  omission  of  the  party 
sought  to  be  charged,  and  does  not  apply  to  a  case  of  nuisance 
created  by  plaintiff  himself  and  of  his  own  volition  or  in  conjunc- 
tion with  others  upon  his  own  lot.195  So,  although  a  party  may 
have  contributed  of  that  which  is  a  nuisance,  within  the  meaning 
of  a  statute,196  he  may,  nevertheless,  lawfully  make  complaint  there- 
of. This  rule  was  applied  in  a  case  of  the  escape  of  sulphuretted 
hydrogen  gas  from  a  sewer,  and  Quain,  J.,  said :  "  The  circum- 
stance that  the  respondents  ought  to  take  steps  to  abate  a  nuisance, 
does  not  justify  the  appellants  in  creating  it."197  So  it  is  no  de- 
wealth,  13  Bush  (Ky.),  388-390,  26  193.  Harris  v.  Thompson,  9  Barb. 
Am.  Rep.  205,  per  Cofer,  J.                        (N.   Y.),   350. 

189.  Adams    Hotel    Co.    v.    Cobb,  194.  Paddock    v.    Somes,    102   Mo. 
Ind.  Ty.  1899,  53  S.  W.  478.                       226,  239,  10  L.  R.     A.  254,  14  S.  W. 

190.  State  v.  Purse,  4  McCord   (S.      746. 

C.))  472.  195.  Richards  v.  City  of  Waupun, 

191.  Barkau    v.    Knecht,    9    Ohio       57  Wis.  45,  17  N.  W.  975. 

Dec.    (Reprint)   66,  10  Wkly.  L.  Bui.  196.   18  &  19  Vict.  c.  121.  s.  8. 

342.  197.  St.    Helens    Chemical    Co.    v. 

192.  Dunsbach  v.  Hollister,  49  Hun  The  Corporation  of  St.  Helens,  L.  R. 
(N.  Y.),  352,   353,   17  N.  Y.   St.  R.  1  Exch.  196. 

461,  2  N.  Y.  Supp.  94,  case  aff'd  132  , 

N.  Y.  602,  44  N.  Y.  St.  R.  934. 

82 


Fundamental  and  General  Principles.  §  46 

iense  where  a  private  nuisance  exists,  that  the  party  injured  there- 
by could  have,  but  has  not,  prevented  the  damage  to  his  prop- 
erty.198 Nor  is  it  any  defense,  nor  does  it  exonerate  defendant 
from  liability,  because  of  the  fact  that  plaintiff  could  have  pre- 
vented the  injury  by  a  reasonable  exertion  and  trifling  expense.199 
If  one  is  obliged  to  commit  a  trespass  in  order  to  remove  a  private 
nuisance  he  is  not  chargeable  with  want  of  reasonable  care  amount- 
ing to  such  contributory  negligence  as  to  preclude  a.  recovery  where 
he  fails  to  remove  such  nuisance,200  and  within  this  rule  one  is 
not  obligated  to  commit  acts  of  trespass  to  lessen  his  damages,  for 
the  law  only  requires  the  use  of  ordinary  care  and  effort  as  against 
the  injurious  consequences  of  another's  wrongful  act.201 

§  46.  Same  subject  continued — Qualifications  and  exceptions. 

— The  general  rule  above  stated  is  not  applicable  in  all  cases,  or  at 
least  there  are  qualifications  of  and  exceptions  to  it.  Thus  it  may 
be  generally  stated  that  if  a  nuisance  makes  the  enjoyment  of  an 
estate  less  beneficial,  or  in  any  way  makes  it  expensive  or  incon- 
venient without  fault  on  the  plaintiff's  part  he  is  entitled  to  com- 
pensation therefor.202  So,  it  is  decided  that  an  owner  who  is  liable 
to  be  injured  in  health  and  property  by  the  overflow  of  water  should 
exercise  all  reasonable  care  to  protect  himself  and  avoid  damages, 
or  to  lessen  the  injury,  if  there  exists  any  known  or 
reasonable  way  to  do  so.203  There  is  also  a  certain  class 
of  decisions  under  which  the  want  of  ordinary  care  on  the  part  of 
the  plaintiff  in  avoiding  an  injury  from  a  nuisance  erected  by 
another  is  a  full  defense  to  the  action.204  And  it  is  also  held  that 
a  party  suing  for  damages  from  a  nuisance  must  show  that  he  used 
ordinary  and  reasonable  care  and  diligence  to  avoid  the  injury.205 

198.  T.  A.  Snider  Preserve  Co.  v.  201.  Gulf,  C.  &  S.  F.  R.  Co.  v. 
Brown,  22  Ky.  Law  Rep.  1527,  60  S.  Reed,  Tex.  Civ.  App.  1893,  22  S.  W. 
W.  849.  283. 

199.  Paddock  v.  Somes,  102  Mo.  202.  Sherman  v.  Fall  River  Iron 
226,  238,  14  S.  W.  746,  10  L.  R.  A.  Works  Co.,  2  Allen  (84  Mass.),  524, 
254,   citing  Wood  on  Nuis.    (2d   ed.)  526,   79  Am.  Dec.   799. 

506,    (3rd    ed.)     §    844.  203.  Toledo  v.   Lewis.  9  Ohio  Cir. 

200.  Missouri,  Kansas  &  Texas  Ry.      Dec.  451. 

Co.  v.   Burt,  Tex.  Civ.  App.  1894,  27  204.  Crommelin   v.    Coxe,   30   Ala. 

S.  W.  948;   Gulf,  C.  &  S.  F.  R.  Co.      318,  68  Am.  Dec.   120. 
v.  Reed,  Tex.  Civ.  App.   1893,  22   S.  205.  Mayor  &  City  Council  of  Bal- 

W.  283. 

83 


§  46  Fundamental  and  General  Principles. 

So,  the  court,  in  a  Connecticut  case,  says :  "  It  is  a  familiar  prin- 
ciple in  this  class  of  cases  that  the  plaintiff  must  show  that  he  exer- 
cised ordinary  care  at  the  time  of  the  injury  or  he  cannot  recover ; 
in  other  words,  if  his  own  negligence  essentially  contributed  to 
the  injury  it  cannot  be  said,  in  a  legal  sense,  that  it  was  caused 
by  the  negligence  of  defendant  Although  this  is  not  a  case,  strictly 
speaking,  of  contributory  negligence,  yet  we  think  the  same  prin- 
ciple applies."206  If  a  plaintiff  may  by  the  exercise  of  ordinary 
care  and  caution  escape  an  injury  occasioned  by  a  nuisance,  and  the 
proximate  and  immediate  cause  of  the  damage  can  be  traced  to  such 
want  of  ordinary  care  and  caution,  then  he  cannot  recover,  even 
though  the  defendant's  misconduct  was  the  primary  cause  of  the 
injury  complained  of.  This  rule  was  applied  in  a  case  of  a  pub- 
lic nuisance  existing  by  reason  of  an  area  which  opened  in  the  pave- 
ment of  a  public  street  and  into  which  plaintiff  fell  and  broke  her 
leg.207  So,  where  an  obstruction  is  unlawfully  placed  upon  a  high- 
way, and  one's  horse  is  injured  thereby,  he  cannot  maintain  an 
action  on  the  case  for  the  injury  where  he  failed  to  use  ordinary 
care  to  avoid  the  obstruction.208  Again,  whoever,  without  special 
authority,  materially  obstructs  a  street  or  highway,  or  renders  its 
use  hazardous  by  doing  anything  upon  it,  above  or  below  the  sur- 
face, is  guilty  of  a  nuisance.  No  question  of  negligence  can  arise, 
the  act  being  wrongful  and  there  exists  no  difference  whether  the 
fee  of  the  land  within  the  limits  of  the  easement,  is  in  a  municipal 
corporation  or  in  the  wrongdoer;  and  if  an  individual  sustains 
special  damages  therefrom,  without  any  want  of  due  care  to  avoid 
injury,  he  has  a  remedy  by  action  against  the  author  or  person  con- 
tinuing the  nuisance.209  In  a  Pennsylvania  case  the  defendant  con- 
structed certain  buildings  on  a  lot  of  which  he  was  the  owner  and 
which  was  subject  to  the  easement  of  a  mill-race  over  which  he  had 
no  control,  nor  was  he  obligated  to  repair  the  same.  It  did  not  ap- 
pear that  it  was  unusual,  negligent,  or  improper  to  build  as  he  did. 
The  plaintiff,  who  bought  his  lot  from  defendant,  erected  thereon 

timore  v.  Marriott,  9  Md.  160,  66  Am.  207.  Irwin  v.  Sprigg,  6  Gill  (Md.). 

Dec.  326.  200,  205,  46  Am.  Dec.  667. 

206.  Parker  v.  Union  Woolen  Co.,  208.  Smith  v.  Smith,  2  Pick.    (19 

42  Conn.  399,  402,  per  Carpenter,  J.  Mass.)    621,  13  Am.  Dec.  464. 

(a  case  of  a  horse  being  frightened  209.  Congreve  v.  Smith,  18  N.  Y. 

by  a  steam  whistle).  79,  82. 

84 


Fundamental  and  Genekal  Principles.  §  47 

a  hou&3  without  using  precautions  which  would  have  afforded  pro- 
tection from  the  water  from  the  mill-race  which  it  was  alleged 
injured  his  property,  and  it  appeared  from  the  evidence  that  his 
act  in  so  building  was  one  of  inexcusable  negligence.  Relief  was 
sought  by  a  bill  in  equity  which  was  dismissed.  The  court  said: 
"  At  law  the  plaintiff  would  have  to  make  out  a  case  of  negligence 
on  the  part  of  defendant,  and  clear  of  it  on  his  own  part.  The 
rule  in  equity  is  certainly  no  harder  on  defendant  .  .  .  We  have 
examined  the  whole  evidence,  and  are  of  opinion  that  in  any 
aspect,  whether  of  negligence  of  defendant,  or  contributory  negli- 
gence of  complainant,  the  complainant  has  not  only  failed  to  make 
out  a  clear  case  in  his  favor,  but  has  left  the  weight  of  evidence 
on  the  side  of  defendant's."210 

§  47.  Contributory  negligence — Maintenance  of  another  nuis- 
ance— Other  or  additional  damage  of  same  character  by  one's 
own  acts. — The  doctrine  of  contributory  negligence,  on  the  ground 
that  plaintiff  had  maintained  a  nuisance  resulting  in  similar  dam- 
ages, does  not  apply  where  the  injury  complained  of  is  a  nuisance 
by  defendant,  as  the  act  of  plaintiff  in  maintaining  another  nuis- 
ance would  not  contribute  to  the  injury  caused  by  defendant's 
nuisance.  He  would  cause  a  separate  and  additional  injury  result- 
ing from  wholly  different  acts-  from  those  done  by  defendant  He 
would  not  contribute  to  the  injury  done  by  defendant,  but  would 
commit  another  injury;  although,  if  plaintiff  maintains  another 
nuisance,  this  should  be  considered  in  determining  the  extent  of 
defendant's  liability.211  One  who  decisively  contributes  to  bring 
a  mischief  on  himself,  may  not  impute  it  to  another,  but  he  who 
does  hurt  to  his  neighbor  cannot  escape  liability  for  the  damage 
thereby  occasioned  by  showing  that  the  person  he  has  injured  has 
also  sustained  other  or  additional  damage  of  the  same  character 
through  separate  acts  or  omissions  of  his  own.  In  such  cases  each 
party  is  chargeable  with  the  consequences  of  his  own  conduct,  and 
neither  of  them  is  at  liberty  to  shift  his  burden  to  the  shoulders  of 
the  other.  The  doctrine  of  contributory  negligence  has  no  appli- 
cation.212 

210.  Mowday  v.  Moore,  133  Pa.  field,  77  Iowa,  50.  5i>,  14  Am.  St.  Rep. 
St.  508,  25  Wkly.  N.  C.  529,  19  Atl.      2G8,  41  N.  W.  5G2. 

626.  212.  Philadelphia    &    Reading    R. 

211.  Randolph  v.  Town  of  Bloom-      Co.  v.  Smith,  12  U.  S.  C.  C.  A.  384, 

85 


§§  48,  49.       Fundamental  and  General  Principles. 

§  48.  Neglect  to  abate  nuisance — Omission  of  duty. — The 
neglect  of  the  owner  or  occupier  of  land  to  abate  a  public  nuisance, 
arising  thereupon  after  he  becomes  aware  that  a  nuisance  exists, 
renders  him  liable  to  indictment213 

|  49.  Effect  of  locating  near  existing  nuisance. — The  fact 
that  a  person  locates  near,  or  purchases  or  improves  property  in  the 
vicinity  of,  an  existing  nuisance  does  not  deprive  him  of  his  rem- 
edy for  the  maintenance  of  such  nuisance.  The  fact  that  he  has 
come  to  it  is  immaterial,214  where  no  prescriptive  right  to  maintain 
fchs  same  has  been  acquired.21"  So,  where  a  person  sustained 
special  injury  by  the  maintenance  of  a  beer  garden,  a  disorderly 
place,  it  was  decided  that  he  was  not  estopped  to  bring  a  suit  to 
enjoin  the  owner  from  maintaining  the  same  by  the  fact  that  the 
garden  had  been  established  several  years  before  the  plaintiff  pur- 
chased the  land  and  built  his  house  thereon,216  and  the  fact  that  a 
railroad  was  built  several  years  before  plaintiff  erected  his  build- 
ing near  the  same  was  held  to  deprive  him  of  his  right  to  enjoin 
the  maintenance  of  a  nuisance  caused  thereby.217  Again,  the  fact 
that  a  nuisance  was  in  existence  when  a  person  purchased  his  prop- 
erty from  a  third  party  raises  no  presumption  that  he  purchased 
the  property  subject  to  the  easement  of  the  defendant  to  maintain 
such  nuisance.218 

64   Fed.   679,  680,   27  L.  R.   A.   131,      liotson    v.    Feethara,    2    Bing.    N.    C. 
per  Dallas,  C.  J.  134.     Compare  Eason  v.  Perkins,   17 

213.  So  held   in   Attorney  Gail  v       N.  C.  38. 

Tod  Heatley  [1897],  1  Ch.  560,  66  L.  215.  Baltimore    v.    Fairfield    Imp. 

J.   Ch.   N.  S.   275,   76   L.  T.  Rep.   N.  Co.,  37  Md.  352,  39  Atl.   1081,  40  L. 

8.    174,   case   reverses   75   L.   T.   Rep.  R.  A.  494,  67  Am.  St.  R.  344;  Mulli- 

452.  gan  v.  Elias,  12  Abb.  Prae.  N.  S.   (N. 

214.  Kissel     v.     Lewis,     156     Ind.  Y.)   259. 

233,    59    N.    E.    478;      Susquehanna  216.  Kissel  v.  Lewis,  156  Ind.  233, 

Fert.  Co.  v.  Malone,  73  Md.   2G8,  20  59  N.   E.  478. 

Atl.  900,  9  L.  R.  A.  737,  25  Am.  St.  217.  King  v.  Morris  &  E.  R.  Co., 

R.  595;  King  v.  Morris  &  E.  R.  Co.,  18  N.  J.  Eq.  397. 

18  N.  J.  Eq.  397;  Alexander  v.  Kerr,  218.  Lohmiller     v.     Indian     Ford 

2  Rawle   (Pa.),  83,  19  Am.  Dec.  616;  Water  P.  Co.,  51  Wis.  683,  8  N.  W. 

Lohmiller   v.    Indian   Ford   Water   P.  601. 

Co.,   51  Wis.  683,  8  N.  W.  601;  El- 


CHAPTER  IV. 

Prescriptive  Right. 

Section     50.  No  prescriptive  right  as  to  public  nuisances. 

51.  Same  subject — Reasons  underlying  rule. 

52.  Nuisance  in  highway. 

53.  Pollution   of   streams. 

54.  Trade  or  occupation  not   a  nuisance  originally. — Effect  of  De- 

velopment of  Locality. 

55.  Prescriptive   right    to    maintain   private   nuisance. 

56.  Essential  elements  of  right  by  prescription. 
58.  Delay  as  evidence  of  acquiescence. 

57.  Same  subject. — Application  of  rule. 


§  50.  No  prescriptive  rights  to  public  nuisance.—  No  period  of 
use  and  occupancy,  however  extended  and  uninterrupted,  or  under 
whatever  claim  of  right,  will  protect  a  public  nuisance  from  abate- 
ment by  the  public  authorities,  or  defeat  the  preventive  remedy  by 
injunction  to  restrain  its  perpetuation.  No  prescriptive  right  to 
maintain  such  a  nuisance  can  be  acquired.1     So,  it  has  been  de- 


1.  Woodworth  v.  North  Bloomfield 
Gravel  &  Min.  Co.,  18  Fed.  753; 
Weiss  v.  Taylor  (Ala.,  1905),  39  So. 
19;  City  of  Birmingham  v.  Land,  137 
Ala.  538,  34  So.  613;  Olive  v.  State, 
86  Ala.  88,  5  So.  653,  4  L.  R.  A.  33; 
Wright  v.  Moore,  38  Ala.  593,  82 
Am.  Dec.  731 ;  Town  of  Clover  dale  v. 
Smith,  128  Cal.  230,  60  Pac.  851; 
People  v.  Gold  Run  Ditch  &  M.  Co., 
66  Cal.  138,  4  Pac.  1152;  Phinizy  v. 
Augusta,  47  Ga.  260,  266;  Litchfield 
Whitenack,  78  111.  App.  364;  Bloom- 
ington  v.  Costello,  65  111.  App.  407; 
Pettis  v.  Johnson,  56  Ind.  139;  Char- 
lotte v.  Pembroke  Iron  Works,  82 
Me.  391,  19  Atl.  902,  8  L.  R.  A.  828; 
Woodyear  v.  Schaefer,  57  Md.  1,  40 
Am.    Rep.    419;  Philadelphia,    W.    & 


B.  R.  Co.  v.  State,  20  Md.  157;  New 
Salem  v.  Eagle  Mill  Co.,  138  Mass. 
8;  Ronayne  v.  Loranger,  66  Mich. 
373,  33  N.  W.  840;  State  v.  Frank- 
lin Falls  Co.,  49  N.  H.  240,  6  Am. 
Rep.  513;  State  ex  rel.  Board  of 
Health  v.  Lederer,  52  N.  J.  Eq.  675, 
29  Atl.  444;  City  of  Rochester  v. 
Erickson,  46  Barb.  (N.  Y.)  92;  Dy- 
gert  v.  Schenck,  23  Wend.  (N.  Y.) 
446,  35  Am.  Dec.  575;  Mills  v.  Hall, 
9  Wend.  (N.  Y.)  315,  24  Am.  Dec. 
160;  People  v.  Cunningham,  1  Denio 
(N.  Y.),  536,  43  Am.  Dec.  709;  State 
v.  Holman,  104  N.  C.  861,  10  S.  E. 
758;  Blizzard  v.  Danville,  175  Pa. 
479,  34  Atl.  846,  38  W.  N.  C.  225; 
Comonwealth  v.  Moorehead,  118 
Pa.  St.  344,   12  Atl.  824,  4  Am.  St. 


87 


§  50  Prescriptive  Eight. 

clared  that :  "  The  public  health,  the  welfare  and  safety  of  the  com- 
munity, are  matters  of  paramount  importance,  to  which  all  the 
pursuits,  occupations  and  employments  of  individuals,  inconsistent 
with  their  preservation,  must  yield.  It  is,  therefore,  immaterial, 
so  far  as  the  government  is  concerned  in  the  administration  of  the 
law  for  the  general  welfare,  how  long  a  noxious  practice  may  have 
prevailed,  or  illegal  acts  been  persisted  in.  Easements  may  be 
created  in  lands,  and  the  rights  of  individuals  may  be  wholly 
changed  by  adverse  use  and  enjoyment,  if  it  is  sufficiently  pro- 
tracted ;  but  lapse  of  time  does  not  equally  affect  the  rights  of  the 
State."2  So,  the  existence  of  a  nuisance  for  such  a  length  of  time 
as  would  create  a  right  by  prescription  against  an  individual  is  no 
defense  to  an  indictment  therefor.3  And  though  by  the  continu- 
ance of  a  nuisance  in  the  shape  of  a  mill-dam  a  prescriptive  right 
may  have  been  acquired  to  overflow  the  lands  flooded  thereby,  it  is 
no  defense  to  a  proceeding  by  the  public  to  abate  such  nuisance.4 
And  a  nuisance  being  unlawful  in  its  inception  to  the  public  can 
never  become  lawful  as  to  individual  members  of  the  public.5  So, 
where  the  use  of  a  stream  constitutes  a  public  nuisance,  no  right  by 
prescription  to  continue  such  use  can  be  acquired  as  against  an  in- 
dividual who  has  sustained  a  special  injury  as  a  result  of  such  use.6 

R.   599 ;   Barter  v.   Commonwealth,   2  "  Nullum      tempus      occurrit      rei- 

P.   &   W.    (Pa.)    253;      City   of   New  publicae     applies     with     unmitigated 

Castle    v.    Raney,    6    Pa.    C.    Ct.    R.  force     against     a     public     nuisance." 

(Pa.)    87;  State  v.   Rankin,  3   S.   C.  Dygert  v.  Schenck,  23  Wend.  (N.  Y.) 

438,   16   Am.   Rep.   737;   North  Point  446,     449,     35     Am.     Dec.     575,     per 

Consol.  I.  Co.  v.  Utah  &  S.  L.  C.  Co.,  Cowen,  J. 

16  Utah,  246,  52  Pac.  168,  40  L.  R.  2.  Commonwealth     v.      Upton,      6 

A;  851,  67  Am.  St.  R.  607;  Meiners  v.  Gray     (Mass.),    473,    476,    per    Mer- 

Miller  Brewing  Co.,   78  Wis.  364,  47  rick,  J. 

N.  W.  430,   10  L.  R.  A.  586;   Childs  3.  People  v.   Cunningham,   1   Denio 

v.    Nelson,    69    Wis.    125,    33    N.    W.  (N.  Y.),  524,  43  Am.  Dec.  709. 

587;  Weld  v.  Hornby,  7  East,  196.  4.  Mills  v.  Hall,  9  Wend.   (N.  Y.) 

"An  adverse   use,  which   is  known  315,    24   Am.    Dec.    709.        See,    also, 

to     have     originated     without     right  State  v.  Rankin,  3  S.  C.  438,  16  Am. 

within    the   memory   of   persons   now  Rep.  737. 

living,  will  not  alone  of  itself  legiti-  5.  Woodruff    v.    North    Bloomfield 

mate   a   public  nuisance,  or  bar   the  Gravel  &  M.  Co.,  18  Fed.  753. 

public    of    their    rights."        State    v.  6.  Bowen  v.  Wendt,  103  Cal.  236, 

Franklin  Falls  Co.,  49  N.  H.  240,  6  37  Pac.  149. 
Am.  Rep.  513,  per  the  court. 

88 


Prescriptive  Right.  §  51 

§  51.  Same  subject — Reasons  underlying  rule. — This  rule  de- 
rives its  origin  from  the  common  law  which  did  not  recognize  the 
acquirement  of  any  right  by  prescription  against  the  king.  "  The 
rule  of  the  common  law  was  expressed  by  the  maxim,  nullum  tem- 
pus  occurit  regi.  There  was  no  statute  of  limitations  against  the 
sovereign  power,  and  prescription  did  not  run  against  the  king. 
This  rule  has  been  gradually  recognized  by  the  American  States, 
and  it  has  been  held  that  statutes  of  limitation  are  not  applicable 
to  suits  brought  by  a  State,  unless  they  are  made  applicable  to 
them  in  terms."7  It  is  also  said  to  be  founded  upon  the  element 
of  criminality  which  enters  into  the  oifense  of  creating  and  main- 
taining a  public  nuisance  and  which  should  therefore  prevent  the 
acquisition  by  prescription  of  any  right  in  respect  to  the  main- 
tenance thereof.8  Again,  a  reason  as  to  prescription  not  legalizing 
a  public  nuisance  is  that  the  community  at  large  will  not  ass>ert 
their  rights  with  the  same  promptness  with  which  individuals  will 
assert  theirs.9  In  this  case  it  was  said  by  the  court :  "  The  State 
is  impersonal,  '  the  people  do  not,  and  cannot,  legally  act  in  a 
body.'  Their  power  must  of  necessity  be  exercised  only  through 
agents.  It  cannot  be  expected  that  these  agents  will  manifest  the 
same  vigilance  in  detecting  and  resisting  encroachments  on  public 
interests,  that  individuals  evince  in  the  protection  of  their  private 
rights.  Moreover,  the  State  officials  are  generally  few  in  number 
and  fully  occupied  with  the  regular  routine  of  official  duties.  They 
do  not  generally  institute  proceedings  to  punish  violation  of  laws 
except  at  the  instigation  of  individuals.  It  may  be  doubted 
whether  these  officers  are  ever  aware  of  a  very  large  proportion 
of  the  infringement  on  the  rights  of  the  State.  It  has  been  thought 
by  some  that  the  maxim  nullum  tempus  occurrit  regi,  is  an  out- 
growth of  monarchial  despotism,  and,  therefore,  inapplicable  under 
our  republican  form  of  government.  But  whatever  may  have  been 
its  origin,  this  maxim  has  now  for  a  long  time  been  maintained  as 
a  part  of  the  common  law,  not  for  the  personal  convenience  of  the 
sovereign,  but  '  for  the  security  and  benefit  of  the  people.'  " 

7.  Attorney-General  v.  Revere  Cop-  8.  Attorney-General  v.  Revere  Cop- 
per Co.,  152  Mass.  444,  449,  25  N.  E.  per  Co.,  152  Mass.  444,  25  N.  E.  605, 
605,    9    L.    R.    A.    510,    per    Knowl-  9  L.  R.  A.  510. 
ton>  J-  9.  State  v.  Franklin  Falls  Co.,  49 


89 


N.  H.  240,  6  Am.  Rep.  513. 


§§  52,  53  Prescriptive  Right. 

§  52.  Nuisance  in  highway.— A  street  or  highway  is  dedicated 
to  the  use  of  the  public  for  the  purpose  of  travel,  that  is  of  pas- 
sage and  repassage,  and  is  not  subject  to  any  use  which  is  incon- 
sistent with  the  rights  of  the  public  therein.  Therefore,  no  right 
by  prescription  can  be  acquired  to  maintain  a  nuisance  in  a  street 
or  highway.10  So,  where  by  the  collection  of  drivers  and  vehicles 
in  a  street  to  receive  the  grains  remaining  after  distillation,  called 
slops,  which  the  proprietors  of  a  distillery  were  in  the  habit  of  de- 
livering to  those  who  came  for  them,  by  passing  them  through 
pipes  to  a  public  street  where  they  were  received  into  casks  stand- 
ing in  wagons  and  carts,  the  proprietors  were  guilty  of  a  nuisance 
by  obstructing  and  rendering  the  street  inconvenient  to  those  pass- 
ing thereon,  it  was  decided  that  it  was  immaterial  how  long  the 
practice  had  prevailed  or  when  the  distillery  was  built.11 
And  no  right  can  be  acquired  by  prescription  to  maintain  a  ditch 
across  a  city  street  in  such  a  manner  as  to  render  the  same  unsafe 
for  the  purpose  of  travel.12  And  where  a  dam  constitutes  a  nuis- 
ance from  the  fact  that  it  causes  a  public  highway  to  be  over- 
flowed, it  is  no  defense  to  an  indictment  therefor  that  it  has  been 
maintained  continuously  for  a  period  of  twenty  years.13  But  it  has 
been  decided  that  authority  to  construct  a  vault  under  a  sidewalk 
may  be  presumed  from  the  fact  that  a  city  has  knowledge  of  it's 
construction  and  makes  no  objection  thereto  and  that  acquiescence 
therein  for  many  years  will  be  regarded  as  authorization  of  the 
right  of  a  party  to  maintain  the  same  in  a  careful  and  prudent 


§  53.  Pollution  of  streams.— No  right  by  prescription  can  be 

acquired  to  drain  into  a  stream  where  the  water  is  thereby  pol- 
io. Reed  v.   Birmingham,   92   Ala.  L.  R.  A.  553,  29  Am.  St.  R.  898    (aa 

339,  9   So.   161 ;   Isham   v.   Broderick,  to  nuisance  in  highways  see   §§  212- 

89  Minn.   397,   95   N.  W.  224;   Simis  264  herein). 

v.    Brookfield,    13    Misc.   R.    (N.    Y.)  11.  People      v.      Cunningham,       1 

569,   34   N.   Y.   Supp.   695,   68   N.   Y.  Denio   (N.  Y.),  524,  43  Am.  Dec.  709. 

St.    R.    738;   Philadelphia   v.   Friday,  12.  Lewiston    v.    Booth,    3    Idaho, 

6   Phila.    (Pa.)    275;   Yates   v.    War-  692,  34  Pac.  809. 

renton,   84  Va.  337,  4   S.  E.   818,   10  13.  State  v.  Phipps,  4  Ind.  515. 

Am.  St.  R.  860;  Chase  v.  City  of  Osh-  14.  Gridley  v.   City   of   Blooming- 

kosh.  81  Wis.  313,  51  N.  W.  560,  15  ton,  68  111.  47. 

90 


Prescriptive  Right.  §  54 

luted  or  poisoned  and  is  in  its  nature  and  consequences  an  injury 
to  all  who  come  within  the  sphere  of  its  operation  and  affects  the 
public  at.  large,  thereby  constituting  a  public  nuisance.15  So,  the 
use  of  a  stream  as  a  sewerway  amounts  to  a  public  nuisance  for 
which  there  can  be  no  prescription,16  as  where  it  is  used  by  a  city 
for  drinking  purposes.17 

§  54.  Trade  or  occupation  not  a  nuisance  originally — Effect  of 
development  of  locality. — The  fact  that  a  trade  or  occupation 
was*  established  at  a  place  remote  from  buildings  and  public  roads 
and  has  been  carried  on  for  a  period  ordinarily  sufficient  to  confer 
a  right  or  title  by  prescription,  does  not  entitle  the  owner  to  con- 
tinue it  in  the  same  place,  after  houses  have  bean  built  and  roads 
laid  out  in  the  neighborhood,  where  it  is  a  nuisance  to  the  occu- 
pants of  such  houses  and  travelers  upon  the  roads.18  So,  where  a 
person  is  indicted  for  a  public  nuisance  by  the  maintenance  of  a 
slaughter  house,  it  is  no  defense  thereto  that  it  was  originally  built 
remote  from  habitations  and  public  roads  and  that  those  who  are 
injured  by  it  subsequently  erected  their  buildings  within  the  reach 
of  injurious  consequences  of  which  they  complain.19  It  was  said 
by  the  court  in  this  case :  "  While  an  offensive  or  unwholesome 
trade  or  business  is  carried  on  at  a  point  so  remote  from  others  as 
in  no  manner  to  affect  or  disturb  them,  the  pursuit  is  lawful ;  but 
it  necessarily  becomes  unlawful  whenever  the  adjacent  owners  so 
far  devote  their  own  property  to  the  purposes  of  business  or  resi- 

15.  City   of   Birmingham   v.   Land,  17.  Kelley  v.   New   York,   89   Hun 
137  Ala.  538;  Piatt  v.  City  of  Water-       (N.  Y.),  246. 

bury,    72    Conn.    531,    45    Atl.     154;  18.  Commonwealth     v.     Upton,     6 

Woodyearv.   Schaefer,   57    Md.    1,   40  Gray  (Mass.),  473;  People  v.  Detroit 

Am.  Rep.  419;   Brookline  v.  Mackin-  White  Lead  Works,  82  Mich.  471,  46 

tosh,  133  Mass.  215;   Kelley  v.  New  N.  W.  735,  9  L.  R.  A.  722;  State  ex 

York,  89   Hun    (N.  Y.),  246;  Kelley  rel.   Board   of  Health   v.   Lederer,   52 

v.  New  York,  6  Misc.  R.  (N.  Y.)  516,  N.  J.  Eq.  675,  29  Atl.  444;  Brady  v. 

27  N.  Y.  Supp.  164,  56  N.  Y.  St.  R.  Weeks,  3  Barb.    (N.  Y.)    157;  Elliot- 

845;   Commonwealth  v.   Yost,   11    Pa.  son   v.   Feetham,  2   Bing.   N.   C.   134. 

Super.  Ct.  323.     See,  generally,  as  to  See  §  97  herein  as  to  "Change  in 

pollution  of  waters,  Chap.       ,  post.  character     of     locality— coming     into 

16.  Woodyear  v.  Schaefer,  57  Md.  nuisance." 

1.  40  Am.  Rep.  419.  !»•  Taylor    v.    People,    6   Parker's 


Cr.  R.   (N.  Y.)   347. 


91 


§  55  Prescriptive  Rigiit. 

dence  as  to  render  its  continuance  incompatible  with  such  pur- 
poses. This  necessarily  results  from  the  legal  principle  which 
secures  to  all  the  right  of  devoting  their  property  to  the  ordinary 
uses  to  which  property  is  appropriated.  Hence,  when  one  person 
makes  such  a  use  of  his  property  as  will  preclude  others  who  are 
near  him  from  deriving  any  substantial  benefit"  or  enjoyment  from 
that  which  they  possess,  the  law  wisely  intervenes  and  prevents  it 
for  the  promotion  of  the  general  good."20 

§  55.  Prescriptive  right  to  maintain  private  nuisance. — The 

rule  applicable  as  to  the  acquirement  of  a  prescriptive  right  in  the 
case  of  public  nuisances  does  not  apply  where  the  nuisance  is  not 
a  public  one  but  private  only.  While  in  the  former  case  no  pre- 
scriptive right  can  be  acquired,  yet  where  the  nuisance  is  one 
which  affects  an  individual  merely  and  is  not  a  public  one,  a  right 
may  in  many  cases  be  acquired  by  prescription  to  maintain  the 
same.21  In  order  to  acquire  this  right  the  existence  of  certain  ele- 
ments is  essential,22  and  one  who  claims,  in  an  action  by  another 
to  abate  a  nuisance,  that  he  has  acquired  a  right  by  prescription  to 
maintain  the  nuisance  complained  of  has  the  burden  of  showing  the 
existence  of  all  fact's  necessary  to  constitute  such  right.23  So,  it 
has  been  declared  that :  "  A  title  by  prescription  is  a  mere  pre- 
sumption made  by  the  law  upon  a  given  state  of  facts  in  further- 
ance of  public  policy  or  to  accomplish  the  ends  of  justice.  The 
title  by  prescription  doss  not  depend  upon  the  actual  belief  of  the 
fact  presumed  for  its  support.  Hence  he  who  invokes  the  aid  of 
the  court  to  sustain  such  a  title,  must  show  a  concurrence  in  his 
favor  of  all  the  facts  necessary  to  constitute  the  title  by  prescript 
tion  or  authorize  the  court  to  presume  the  fact  which  it  was  in- 
cumbent upon  him  to  establish.  One  of  the  essential  ingredients 
of  a  valid  prescription  is,  that  it  must  have  a  continued  and  peace- 

20.  Per  Daniels,  J.  40  L.  R.  A.  851;  Flight  v.  Thomas, 

21.  Drew    v.    Hicks    (Cal.,    1894),      10  Ad.  &  El.  590.     See  cases  cited  in 
35    Pac.    563;   Dana   v.    Valentine,    5      following  sections. 

Mete.    (Mass.)   8;  Rochester  v.  Erick-  22.  See  §  5G  following  herein, 

son,   46    Barb.    (N.   Y.)    92;      North  23.  Stamm    v.    City   of    Albuquer- 

Poi'nt  Consol.  Irrig.  Co.  v.  Utah  &  S.  que,  10  N.  M.  491,  62  Pac.  973. 
L.  C.  Co.,  16  Utah,  246,  52  Pac.  168, 

92 


Prescriptive  Right.  §§  56,  57 

able  usage  and  enjoyment  and  this  is  wanting  if  there  is  a  neglect 
to  claim  or  enjoy  it.24 

§  56.  Essential  elements  of  right  by  prescription. — No  pre- 
scription begins  to  run  until  a  right  of  action  accrues  and  no  right 
of  action  accrues  until  injury  is  inflicted.25  And  no  grant,  license 
or  authority  to  maintain  a  nuisance  can  be  presumed  from  lapse 
of  time  where  there  have  been  repeated  intermediate  expressions  of 
the  legislative  will  prohibiting  the  same.28  Where  the  claim  by 
prescription  applies  it  must  be  a  continued  and  uninterrupted  pos- 
session or  use  for  the  period  required  by  law  as1  well  as  adverse  to 
the  rights  of  others.27  An  injury  complained  of  in  order  to  be 
barred  by  prescriptive  right,  must  have  been  continued  in  substan- 
tially the  same  way  and  with  equally  injurious  results  for  the 
entire  period.28  But  where  property  has  been  used  in  the  manner 
complained  of  and  occupied  by  the  defendant  and  those  under 
whom  he  claims,  to  the  same  extent,  under  a  claim  of  right  against 
all  the  world,  individuals  and  the  public,  for  the  required  period, 
suchuse  can  only  be  enjoined  where  it  clearly  appears  that  it  is  a 
public  nuisance.2' 

§  57.  Same  subject— Application  of  rule.— The  fact  that  the 
statutory  period  has  elapsed  since  the  erection  of  the  works  caus- 
ing the  smoke  and  soot  complained  of  as  a  nuisance,  does  not  bar 
an  action  for  the  damages  caused  by  such  nuisance  where  the  ac- 

24.  Rhodes  v.  Whitehead,  27  Tex.  required  twenty  years.     North  Point 
304,  312,  per  Moore,  J.  Consol.  I.  Co.  v.  Utah  &  S.  L.  C.  Co., 

25.  Norton    v.    Valentine,    14    Vt.  16  Utah,  24C,  52  Pac.  168,  40  L.  r! 
239,    39    Am.   Dec.    220.     See   Stamm  A.  851. 

v.  City  of  Albuquerque,  10  N.  M.  491,  28.  Crosby  v.  Bessey,  49  Me.  539, 

62  Pae.  973.  77  Am.  Dec.  271;  Matthews  v.  Still- 

26.  Lewis  v.  Stein,  16  Ala.  214,  50  water  Gas  &  E.  L.  Co.,  63  Minn.  493, 
Am.  Dec.  177.  65  N.   W.    947;      Ducktown   Sulphur 

27.  Campbell  v.  Seaman,  63  N.  Y.  Copper    &    I.    Co.    v.    Barnes    (Tenn., 
568,  20  Am.  Rep.  567,  affg.  2  Thomp.,  1900),  66   S.   W.   593;      Goldsmid  v. 
&c,  231,   holding  that  there  was  no  Commissioners,  L.  R.  1  Eq.  161. 
prescriptive     right     to     maintain     a  29.  Rochester      v.      Erickson,      46 
brick  yard  where  its  use  as  such  had  Barb.   (N.  Y.)   92. 

been  abandoned  during  a  part  of  the 


93 


§  57  Prescriptive  Right. 

tionable  injury  only  arose  within  such  period.30  Thus  where  de- 
fendant had  maintained  and  operated  a  foundry  and  cupulo  for 
more  than  twenty  years  prior  to  the  time  when  any  complaint  had 
been  made,  it  was  decided  in  a  recent  case  that  this  fact  conferred 
no  right  by  prescription  to  continue  the  operation  of  the  cupulo 
thereafter  in  such  a  manner  as  to  greatly  interfere  with  the  plain- 
tiff's occupancy  and  enjoyment  of  his  property,  as  in  such  a  case  a 
cause  of  action  does  not  accrue  until  damage  results*  and  it  did  not 
appear  that  the  plaintiff  had  sustained  equal  injury  during  the 
entire  period.31  So,  there  was  held  to  be  no  prescriptive  right  to 
deposit  bark  from  a  tannery  in  a  stream  so  as  to  cause  a  deposit 
thereof  on  plaintiff's  land,  it  appearing  that  though  the  depositing 
of  such  bark  in  the  stream  had  been  carried  on  for  more  than 
twenty  years,  yet  that  it  had  only  been  about  six  years  that  such 
deposits  had  been  made  on  the  land  of  the  plaintiff.32  And  the  fact 
that  an  adjoining  owner  did  not  object  to  the  construction  of  a 
gas  plant  has  been  held  not  to  estop  him  from  objecting  to  a  nuis- 
ance caused  by  the  escape  of  noxious  gases  therefrom  where  he 
made  such  objection  immediately  upon  the  commencement  of  such 
nuisance.33  So,  the  statute  of  limitations  was  held  not  to  begin  to 
run  from  the  time  of  the  erection  of  a  smelter,  but  only  from  the 
time  when  the  fumes  complained  of  commenced  to  cause  the  dam- 
age.34 So,  where  brick  burning  was  shown  to  have  been  com- 
menced forty-two  years  prior  to  the  bringing  of  the  bill,  but  there 
was  shown  to  have  been  an  interruption  for  twenty  years,  it  was 
held  that  there  having  been  a  cesser  of  the  right  for  this  period, 
that  the  nuisance  might  be  complained  of  by  bill.35  And  where  a 
dam  had  been  maintained  for  sufficient  period  to  give  a  right  by 
prescription,  but  within  such  period  it  had  been  raised  to  a  greater 
height,  it  was  decided  that  to  establish  the  prescription  it  must 
appear  that  the  easement  had  been  enjoyed  for  the  requisite  period 

30.  Churchill  v.  Burlington  Water  E.   L.   Co.,   63   Minn.   493,   65   N.   W. 
Co.,  94  Iowa,  89,  62  N.  W.  646.  947. 

31.  Over    v.     Dehne     (Ind.     App.,  34.  Stenett   v.    Northport   Min.    & 
1.905),  75  N.  E.  664.  Sm.   Co.,   30   Wash.   St.    164,   70   Pac. 

32.  Crosby  v.  Bessey,  49  Me.  539,  266. 

77  Am.  Dec.  271.  35.  Roberts  v.  Clarke,  18  Law  T. 

33.  Matthews  v.  Stillwater  Gas  &       (U.  S.)    49.     As  to  brick  burning  a 

nuisances  see  §§  111,  145,  herein. 

94 


Prescriptive  Right.  §  57 

to  the  extent  claimed  at  the  trial.36  Again,  the  fact  that  noise  and 
vibration  from  machinery  has  never  been  complained  of  for  more 
than  twenty  years,  does  not  deprive  a  neighbor  of  his  right  to  an 
injunction  restraining  any  increased  noise  though  such  increase 
be  slight.37  And  where  noise  from  a  business  carried  on  on 
adjoining  premises  had  not  been  complained  of  for  more  than 
twenty  years,  it  was  decided  that  no  easement  to  continue  the  noise, 
after  plaintiff  had  so  altered  his  premises  as  to  render  such  noise 
a  nuisance,  had  been  acquired.38  And  where  in  the  case  of  an 
alleged  nuisance  by  a  railroad  by  the  maintenance  of  a  culvert,  the 
acts  complained  of  from  which  the  nuisance  resulted,  were  not  a 
complete  and  permanent  injury  at  the  time  the  railway  and  culvert 
were  erected,  but  became  so  by  reason  of  the  occurrence  of  future 
events,  it  was  decided  that  the  nuisance  being  a  constantly  increas- 
ing one,  the  remedy  of  the  party  injured  was  not  lost  by  prescrip- 
tion.39 So,  where  in  an  ancient  mill  a  new  and  different  machine  is 
erected,  of  another  description,  the  operation  of  which  constitutes 
a  nuisance  to  the  mills  below,  such  machine  is  not  protected  by 
the  antiquity  of  the  mill.40  And  a  municipal  corporation  can  ac- 
quire no  prescriptive  right  to  permit  a  stream,  adopted  by  it  as  a 
sewer,  to  become  so  obstructed  as  a  result  of  such  use  as  to  throw 
filth  upon  adjoining  lands,  the  right  of  action  arising  not  out  of 
the  adoption  of  the  stream  for  such  purpose,  but  from  the  negli- 
gence of  the  municipality  in  not  keeping  it  in  as  good  a  condition 
as  it  found  it.  In  such  case  it  owes  the  duty  to  keep  the  channel 
open  and  not  to  permit  accumulations  and  overflow.41  And  where 
an  action  was  brought  for  a  nuisance  by  causing  offensive  smells 
to  arise  near  to  in  about  plaintiff's  house  and  the  plea  was  the  en- 

36.  Postlethwaite  v.  Paine,  8  Ind.  tiff  until  after  he  had  erected  a  con- 
105.  suiting  room   at   the  end  of  his  gar- 

37.  Heather   v.    Pardou,    37    L.    T.  den,   when   the    noise    became    a    nui- 
N.   S.  393.     As   to   noise  a   nuisance  sance  to  him. 

see  §§  174-191,  herein.  39.  International   &  G.   N.   R.    Co. 

38.  Sturges  v.  Bridgman,  L.  R.  11      v.  Davis    (Tex.  Civ.  App.),  29  S.  W. 
Ch.   Div.   852.       In   this  case   it   ap-      483. 

peared  that  plaintiff  was  a  physician  40.  Simpson  v.  Seavey,  8  Me.  138, 

and   that   the   premises   of   defendant  22  Am.  Dec.  228. 

abutted    on    the    garden    of   plaintiff.  41.  Blizzard   v.   Danville,    175   Pa. 

but  the  noise  had  never  been  felt  as  St.  479,  34  Atl.  846. 

a  nuisance  or  complained  of  by  plain- 

95 


§  58  Prescriptive  Right. 

joynient  as  of  right  for  twenty  years  of  a  mixen  on  defendant's 
land  whereby  during  all  that  time  offensive  smells  necessarily  and 
unavoidably  arose  from  the  said  mixen,  it  was  decided  that  there 
was  no  right  to  an  easement,  unless  it  appeared  that  the  offensive 
smells  had  been  used  for  twenty  years,  to  go  over  plaintiff's  land.42 
So,  a  man  carrying  on  a  noxious  business  in  a  place  where  it  has 
been  long  established  is  indictable  for  a  nuisance,  if  the  mischief 
is  increased  by  the  manner  or  extent  in  which  he  carries  it  on  but 
not  otherwise,  although  the  business  has  increased  in  amount.43  And 
it  has  been  decided  that  a  party  does  not  lose  his  right  by  prescrip- 
tion to  carry  on  offensive  trade  by  a  mere  suspension  thereof  two 
years  before  the  twenty  elapse,  it  not  appearing  that  there  was  an 
intention  to  abandon  and  not  resume  such  trade.44 

§  58.  Delay  as  evidence  of  acquiescence. — Mere  delay  so  long 
as  the  parties  remain  in  statu-  quo  will  not  deprive  a  party  of 
equitable  relief  in  the  case  of  a  nuisance  unless  the  lapse  of  time 
is  so  great  as  to  create  a  right  by  prescription.45  The  extent  to  which 
delay  is  evidence  of  acquiescence  as  showing  a  right  by  prescrip- 
tion depends  upon  the  circumstances  and  condition  of  things  in 
view  of  which  the  delay  occurs.  In  this  connection  it  is  declared 
in  a  federal  case  that  "  acquiescence  applicable  to  prescription  is 
conduct  recognizing  the  existence  of  a  transaction,  in  some  extent 
at  least,  to  carry  the  transaction,  or  permit  it  to  be  carried  into 
effect.  Acquiescence  must  necessarily  exist  while  the  transaction  is 
going  on  from  which  a  right  of  action  would  otherwise  arise,  and 
its  operation  necessarily  is  to  prevent  a  right  of  action  from  this 
arising,  and  not  to  defeat  the  right  after  it  has  arisen.  Mere  de- 
lay, therefore,  mere  suffering  time  to  elapse,  without  doing  any- 
thing, is  not  acquiescence,  although  it  may  be  evidence,  and  some- 
times strong^  evidence,  of  acquiescence.46 

42.  Flight  v.  Thomas,  10  Ad.  &  Y.),  468,  473.  See  Carlisle  v. 
El.  590.  As  to  smells  a  nuisance  see  Cooper,  18  N.  J.  Eq.  241 ;  Gordon  v. 
§§   157-173,  herein.  Cheltenham    &    Great    Western    Ry. 

43.  Rex  v.  Watts,  M.  &  M.  281,  Co.,  5  Beav.  233;  Gale  v.  Abbott,  8 
22   E.   C.  L.   521.     As  to  business  a  Jur.  N.  S.  987. 

nuisance  see  §§  85-129,  herein.  46.  Woodruff  v.   North   Bloomfield 

44.  Dana  v.  Valentine,  5  Mete.  Gravel  Min.  Co.,  18  Fed.  753,  790, 
(Mass.)  8.  per  Sawyer,  J. 

45.  Snow  v.  Williams,  16  Hun  (N. 

96 


CHAPTER  V. 

PURPRESTURES. 

SECTION     59.  Purprestures. — Generally. 

CO.  Purpresture   distinguished   from  nuisance. 

61.  Streets,   highways,   parks,   etc. 

62.  Rights  of  riparian  owners. — Rule  at  common  law. 

63.  Title  to  land  under  navigable  waters  in  State. 

64.  Rights  of   riparian  owner  generally. — Matter   for    State  to   de- 

termine. 

65.  Right  of  riparian   owner  to  build  wharf,   etc. 

66.  Abatement   and    removal    of. 


§  59.  Purprestures  generally. — A  purpresture  may  be  defined 
as  an  encroachment  upon  or  appropriation  of  lands  or  waters,  or 
rights  or  easements  therein,  which  belong  to  the  public.1     While 


1.  See,  also,  following  definitions  of 
purpresture: 

"  A  form  of  public  nuisance  of 
which  cognizance  has  been  taken  by 
the  courts  of  equity  in  England  and 
this  country  is  called  '  purpresture,' 
which  is  defined  to  be  '  an  encroach- 
ment upon  lands,  or  rights  and  ease- 
ments incident  thereto,  belonging  to 
the  public,  and  to  which  the  public 
have  a  right  of  access  or  enjoyment, 
and  encroachment  on  navigable 
streams.'  "  United  States  v.  Debs, 
64  Fed.  724,  740,  per  Woods,  C.  J. 
(a  case  of  equitable  jurisdiction), 
citing  Wood  on  Nuis.  pp.  107,  117; 
People  v.  Vanderbilt,  28  N.  Y.  396; 
New  Orleans  v.  U.  S.,  10  Pet.  (U. 
S.)  662;  Att'y-Gen'l  v.  Forbes,  2 
Mylne  &  C.  123;  Kerr  on  Injunct. 
p.  395. 

A  purpresture  is  an  encroachment 
by  a  person  by  which  he  makes  that 


several  to  himself  which  ought  to  be 
common  to  many.  Johnson  v.  United 
States,  2  Ct.  CI.  391,  401. 

A  purpresture  exists  where  one  in- 
closes or  makes  several  to  himself 
that  which  ought  to  be  common  to 
many.  People  v.  Park  &  Ocean  R. 
R.  Co.,  76  Cal.  156,  161,  18  Pac.  141. 

A  purpresture  signifies  a  close  or 
enclosure,  that  is,  "  when  one  en- 
croacheth  and  makes  that  serviceable 
to  himself  which  belongs  to  many." 
City  of  Columbus  v.  Jaques,  30  Ga. 
506,  512. 

A  purpresture  is  an  enclosure  or 
appropriation  for  private  use  of  that 
which  belongs  to  the  public.  Lexing- 
ton &  Ohio  R.  R.  'Co.  v.  Applegate,  8 
Dana  (Ky.),  289,  299,  33  Am.  Dec. 
497. 

A  purpresture  is  an  invasion  of  the 
right  of  property  in  the  soil  while 
the    same    remains    in    the     people. 


97 


§60 


PURPBESTUBES. 


the  old  writers  say  that  it  might  be  committed  against  either  the 
king,  the  lord  of  the  fee  or  any  other  subject,  yet  it  is  now  con- 
strued as  meaning  an  encroachment  against  the  sovereign  either  as 
to  public  places,  highways,  or  navigable  waters.2  So,  an  unauthor- 
ized encroachment  upon  the  soil  of  a  navigable  river  is  known  in 
law  as  a  purpresture.3  And  rafts  continuously  moored  in  a  navig- 
able stream  which  are  an  unauthorized  and  illegal  encroachment 
upon  a  public  highway  for  private  purposes,  constitute  a  purpres- 
ture.4 


§  60.  Purpresture  distinguished  from  nuisance. — A  purprest- 
ure is  to  be  distinguished  from  a  nuisance,  for  though  it  may  be 
a  nuisance,  it  is  not  necessarily  one,0  and  an  obstruction  or  en- 
croachment may  be  enjoined  or  abated  as*  a  purpresture  though  it  is 
not   a    public  nuisance   or    only    slightly    inconveniences   travel.6 


Knickerbocker  Ice  Co.  v.  Shultz,  116 
N.  Y.  382,  389,  22  N.  E.  564,  26  N. 
Y.  St.  R.  852;  People  v.  Vanderbilt, 
26  N.  Y.  287,  293. 

A  purpresture  means  an  encroach- 
ment upon,  and  an  inclosure  of,  the 
property  of  the  crown  in  a  highway, 
river  or  harbor.  Attorney-General 
v.  Utica  Ins.  Co.,  2  Johns.  Ch.  (N. 
Y.)   370,  381. 

A  purpresture  is  an  unauthorized 
encroachment  upon,  and  appropria- 
tion of,  land  or  waters  which  are  com- 
mon and  public.  Moore  v.  Jackson, 
2  Abb.  N.  C.   (N.  Y.)   215. 

"  Where  there  is  a  house  erected, 
or  an  inclosure  made  upon  any  part 
of  the  king's  demesnes,  or  of  an  high- 
way, or  common  street,  or  public 
water,  or  such  like  public  things,  i 
is  properly  called  a  purpresture."  4 
Bl.  Comm.  p.  167. 

"  Purpresture  cometh  of  the 
French  word  '  pourprise,'  which  sig- 
nifieth  a  close  or  inclosure, — that  is 
where  one  encroacheth,  or  maketh  sev- 


eral to  himself  that  which   ought  to 
be  common  to  many."     Co.  Lit.  277b. 

2.  Sullivan  v.  Moreno,  19  Fla.  200, 
228. 

3.  People  v.  Gold  Run  D.  &  M.  Co., 
66  Cal.  138,  146,  4  Pac.  1152,  56  Am. 
Rep.  80. 

4.  Moore  v.  Jackson,  2  Abb.  N.  C. 
(N.  Y.)  215. 

5.  People  v.  Park  &  Ocean  R.  R. 
Co.,  76  Cal.  156,  18  Pac.  141;  Attor- 
ney-General v.  Evart  Booming  Co., 
34  Mich.  462. 

6.  Revell  v.  The  People  of  State  of 
Illinois,  177  111.  468,  482,  52  N.  E. 
1052,  69  Am.  St.  R.  257,  43  L.  R.  A. 
790.  See  §  61  following  as  to  streets. 
highways,  &c, 

The  fact  that  a  street  will 
still  accommodate  public  travel, 
or  that  the  public  is  only  slightly 
inconvenienced,  is  immaterial  upon 
the  question  of  the  abatement  of  a 
purpresture.  Smith  v.  McDonald, 
148  111.  51,  35  N.  E.  141,  22  L.  R. 
A.  393. 


98 


PuRPRESTURES.  §  61 

There  are,  however,  some  cases  in  which  it  is  held  to  be  a  nuisance 
•per  se.1  It  is  also  said  to  differ  from  a  public  nuisance  in  that  the 
former  may  ripen  into  a  title  because  of  a  grant  by  the  sovereign 
power  of  the  property  in  question,  while  the  latter  can  never  be 
licensed.8 

§  61.  Streets,  highways,  parks,  etc. — In  the  case  of  a  street  or 
highway  a  purpresture  may  consist  of  an  encroachment  thereon 
by  building  or  otherwise  or  such  an  enclosure,  impediment  or  ob- 
struction of  the  same  or  some  part  thereof  as  will  amount  to  an  ex- 
clusion or  hindrance  of  the  citizens  and  the  public  at  large  from  the 
full  and  beneficial  use  and  enjoyment  of  the  same  as  a  street  or 
highway.9  So,  an  obstruction  extending  into  the  street  five  feet 
and  for  the  length  of  eighty-five  feet  and  intended  to  be  permanent 
and  the  perpetual  use  of  which  is  necessary  for  the  purpose  for 
which  it  was  designed,  is  a  purpresture.10  So,  a  building  encroach- 
ing on  a  street  or  highway  is  a  purpresture,11  as  is  also  a  market 
house  erected  in  a  street,12  and  a  wire  fence  upon  a  highway.13  So, 
streets  in  their  entirety  are  public  properties  exclusively  for  public 
use,  and  a  municipality  cannot  authorize  the  erection  of  an  en- 
croachment upon  the  street  which  will  amount  to  a  purpres-ture.1* 
And  in  California  it  has  been  decided  that  the  title  to  Golden  Gate 
Park  being  vested  in  the  city  and  county  of  San  Francisco  but 
dedicated  to  the  use  of  the  public  and  held  in  trust  by  the  city  for 
such  use,  whatever  materially  interferes  with  and  unlawfully 
abridges  this  right  of  the  public,  it  is  their  right  to  have  abated  and 

7.  Moore  v.  Jackson,  2  Abb.  N.  C.  road  Co.,  7  Barb.  (N.  Y.)  508,  548, 
(N.  Y. )  215;  Delaware  &  Hudson  per  Jones,  P.  J.  As  to  nuisances 
C.  Co.  v.  Lawrence,  2  Hun  (N.  Y.),  affecting  streets  or  highways,  see  §§ 
163,  aff'd  56  N.  Y.  612.  212-264,  herein. 

8.  Timpson  v.  Mayor,  5  App.  Div.  10.  Smith    v.    McDowell,    148    III. 
(N.    Y.)    424,    430,    39    N.    Y.    Supp.  51,  35  N.  E.   141,  22  L.  R.  A.  393. 
248,  holding  that  the  power  to  grant  11.  City  of  Philadelphia  v.  Crump, 
lands    under    water    and    permit    the  1  Brewst.   (Pa.)  320. 
construction     of     bulkheads     thereon          12.  City    of    Columbus    v.    Jaques, 
was  vested  in  the  City  of  New  York,  30  Ga.   506. 

it  not  being  claimed  that  such  bulk-  13.  Borough  of  Lansdowne  v.  Mc- 

heads  were  a  nuisance  or  an  obstruc-  Ewen,  7  Del.  Co.  R.  311. 

tion  to  navigation.  14.  People  v.  Harris,  203  111.  272, 

9.  Drake    v.    Hudson    River    Rail-  67  N.  E.  785,  96  Am.  St.  R.  304. 

99 


§§   62,  63.  PURPESTURES. 

that  the  unlawful  construction  of  railroad,  a  statue,  or  any  building 
upon  the  park,  is  a  purpresture.15  But  a  railroad  so  constructed 
as  not  to  occupy  the  street  in  which  it  is  placed  or  any  portion  of 
it  exclusively,  the  entire  street  being  generally  open  and  free  for 
the  ordinary  purposes,  cannot  be  called  a  purpresture,  and  the 
fact*  that  the  street  may  be  subsequently  monopolized  by  the  com- 
pany does  not  render  the  railroad  such.16 

§  62.  Rights  of  riparian  owners — Rule  at  common  law. — At 

the  common  law  unmodified  by  local  usage,  custom  or  statute,  a  ri- 
parian owner  had  no  right  to  build  any  structures  on  the  submerged 
lands  in  front  of  his  own  land  unless  he  owned  such  submerged 
lands  or  had  a  license  to  do  so.17  The  right  of  property  in  the  soil 
or  bed  of  a  navigable  river  or  arm  of  the  sea,  was  by  common  law 
vested  prima  facie  in  the  sovereign  power  that  is  in  England  in  the 
king,  and  in  this  country  in  the  people,  but  may  be  alienated  by  the 
king  or  people.18 

§  63.  Title  to  land  under  navigable  waters  in  State. — It  is 
the  generally  accepted  doctrine  in  this  country  that  the  State  suc- 
ceeded to  the  rights  of  the  king  and  parliament  to  land  under  tide19 
and  navigable  waters.20  And  it  is  a  general  rule,  except  so  far  as 
it  may  be  qualified  in  those  cases  where  the  State  recognizes  owner- 
ship or  rights  to  lands  under  tide  waters  in  the  individual,  that 
land  under  such  water  belongs  to  the  State,21  which  holds  the  same 
in  trust  for  the  public.22    So,  in  a  leading  case  in  New  York  it  wag 

15.  People  v.  Park  &  Ocean  R.  R.  (U.  S.)  3G7;  Eisenbach  v.  Hatfield, 
Co.,  76  Cal.  156,  18  Pac.  141.  2  Wash.  St.  236,  26  Pac.  539,  12  L. 

16.  Lexington  &  Ohio  R.  R.  Co.  v.      R.  A.  632. 

Applegate,   8   Dana    (Ky.),   289,  299,  20.  Knickerbocker       Ice      Co.      v. 

33   Am.   Dec.   497;  Milhau  v.   Sharp,  Shultz,  116  N.  Y.  382,  387,  22  N.  E. 

15  Barb.   (N.  Y.)    193;  Drake  v.  Hud-  564,   26   N.   Y.    St.   R.    852;   Langdon 

son  River  Railroad  Co.,  7   Barb.    (N.  v.  Mayor  of  New  York,  93  N.  Y.  129. 

Y.)    508.  21.  Weber     v.     Board     of    Harbor 

17.  Cobb  v.  Commissioners  of  Comm'rs,  18  Wall.  (U.  S.)  57; 
Lincoln  Park,  202  111.  427,  437,  67  Eisenbach  v.  Hatfield,  2  Wash.  St. 
X.  E.  5,  95  Am.  St.  R.  258,  63  L.  R.  236,  26  Pac.  539,  12  L.  R.  A.  632. 

A.   264.  22.  Revell    v.    People    of    State    of 

18.  People  v.  Vanderbilt,  26  N.  Y.  Illinois,  177  111.  468,  478,  52  N.  E. 
287,  292,  per  Selden,  J.  1052,  69  Am.  St.  R.  257,  43  L.  R.  A. 

19.  Martin    v.    Waddell,    16    Pet.      790. 

100 


PlJRPRESTURES.  §  63 

said :  "  The  State  has  succeeded  to  all  the  rights  of  both  crown  and 
parliament  in  the  navigable  water  and  the  soil  under  them.23 
Through  the  medium  of  the  legislature,  the  State  may  exercise  all 
the  powers  which  previous  to  the  Revolution  could  have  been  exer- 
cised either  by  the  king  alone  or  by  him  in  conjunction  with  his 
parliament,  subject  only  to  those  restrictions  which  have  been  im- 
posed by  the  constitution  of  this  State  or  of  the  United  States.24 
The  right  to  navigate  the  public  waters  and  to  fish  therein  belong- 
to  the  people  at  large.  In  that  respect  every  individual  has*  the 
same  right.  The  riparian  proprietor  cannot  interfere  with  such 
use  by  the  public.  Should  he  attempt  to  appropriate  to  his  own 
use  the  lands  under  water  in  front  of  his  premises,  and  to  that  end 
should  build  thereon,  it  would  constitute  a  purpresture  which  the 
State  could  remove."25  And  again  the  United  States  Supreme 
Court  has  declared :  "  It  is  the  settled  law  of  this  country  that  the 
ownership  and  dominion  and  sovereignty  over  lands  covered  by  tide 
waters,  within  the  limits  of  the  several  States,  belong  to  the  respec- 
tive States  within  which  they  are  found,  with  the  consequent  right 
to  use  or  dispose  of  any  portion  thereof,  when  that  can  be  done 
without  substantial  impairments  of  the  interest  of  the  public  in 
the  waters,  and  subject  always  to  the  paramount  right  of  Congress 
to  control  their  navigation  so  far  as  may  be  necessary  for  the  regu- 
lation of  commerce  with  foreign  nations  and  among  the  States."26 
So,  a  structure  built  upon  the  bed  of  a  lake,  the  title  to  the  bed 
being  in  the  State  in  trust  for  legitimate  public  uses  such  as  fishing, 
navigation,  and  the  like,  such  structure  not  being  in  aid  of  naviga- 
tion, as  for  example  a  building  in  which  to  store  and  repair  boats, 
is  a  purpresture — an  invasion  both  of  the  State's  title  and  of  the 
right  of  the  public.27  So,  in  a  somewhat  recent  case  in  Illinois  it  is 
decided  that  the  owner  of  land  along  the  shore  of  Lake  Michigan 
has  no  title  to  land  beyond  the  water's  edge,  and  that  while  he  may 

23.  Langdon     v.     Mayor.     &c,     of  26.  Illinois   Cent.  Railroad  v.  Illi- 
New  York,  93  N.  Y.  129.'  nois,  146  U.  S.  387,  435,  per  Mr.  Jus- 

24.  People   v.    New   York   &    S.   I.  tice  Field,   citing  Rollard's  Lessee  v. 
Ferry  Co.,  68  N.  Y.  71.  Hogan,  3  How.    (U.   S.)    212;  Weber 

25.  Knickerbocker       Ice      Co.       v.  v.    Harbor    Commissioners,    18    Wall. 
Shultz,  116  N.  Y.  382,  387,  22  N.  E.  (U.  S.)    57. 

564,     26     N.     Y.     St.     R.     852,     per  27.  Attorney-General      v.      Smith, 

Parker,  J.  109  Wis.  532,  85  N.  W.  512. 

101 


§§  (14,  65.  PURPESTURES. 

protect  his  land  from  invasion  by  structures  thereon,  yet  he  cannot 
do  so  by  structures  which  extend  beyond  such  point  and  that  any 
such  structure  may  be  removed  or  abated.28 

§  64.  Rights  of  riparian  owner  generally — Matter  for  State  to 
determine. — The  question  as  to  the  rights  to  lands  under  tide 
waters  and  the  waters  of  a  navigable  stream  is  one  particularly  de- 
pendent upon  the  laws  of  each  State.  So,  it  has  been  said  to  be 
a  matter  for  the  State  to  determine  as  to  rights  in  lands  under  tide 
water  and  that  federal  courts  generally  follow  the  decisions  of  the 
State  courts.29  And  where  by  the  laws  of  a  State  the  title  to  all 
land  covered  by  water  of  a  navigable  stream  and  lying  in  front  of 
any  tract  of  land  owned  by  a  citizen  of  the  United  States,  is  vested 
in  such  citizen  the  construction  by  him  of  a  wharf  which  does  not 
obstruct  navigation  will  not  be  a  purpresture.30  And  in  Michigan 
a  riparian  proprietor  owns  the  soil  to  the  middle  of  the  stream 
and  that  part  of  the  soil  which  is  covered  by  water  may  be  used 
by  such  owner  in  any  manner  he  chooses,  provided  the  public  use  of 
the  stream  is  not  thereby  seriously  injured,  or  navigation  ob- 
structed, or  other  riparian  owners  damaged.  And  the  legislature 
of  this  State  can  not  authorize  a  municipality  to  make  that  a  pur- 
presture which  is  not  so  in  fact,  if  by  so  doing  the  constitutional 
rights  of  any  citizen  in  his  person  or  property  are  thereby  de- 
stroyed or  infringed.31 

§  65.  Right  of  riparian  owner  to  build  wharf,  etc. — Among 
the  rights  possessed  by  a  riparian  owner  is  that  of  access  to  the 
navigable  part  of  the  water  on  the  front  of  which  his 
land  lies  and  it  is  decided  that  for  that  purpose  he  may  make 
a  landing,  wharf  or  pier  either  for  his  own  use  or  that  of  the  pub- 
lic, subject  to  this  right  of  the  public  that  it  shall  not  interfere 
with  navigation  and  subject  also  to  such  general  rules  and  regu- 
lations as  the  legislature  may  prescribe  for  the  protection  of  the 

28.  Revell  v.  People,  177  111.  468,  30.  Sullivan  v.  Moreno,  19  Fla. 
52  N.  E.  1052,  43  L.  R.  A.  790.  200. 

29.  Union  Depot,  Street  Ry.  &  T.  31.  Grand  Rapids  v.  Powers,  89 
Co.  v.  Brunswick,  31  Minn.  297,  17  Mich.  94,  50  N.  W.  661,  28  Am.  St. 
N.   W.  626,  47   Am.  Rep.   789.  R.   276,   14  L.   R.   A.   498. 

102 


PuRPRESTURES.  R  QQ 

righto  of  the  public.32     And  this  right  of  access  is  declared  to 
exist  without  regard  to  whether  riparian  ownership  extends  beyond 
the  dry  land.33    So,  it  has  been  decided  that  a  riparian  owner  may 
build  wharves  beyond  low  water  mark  provided  navigation  is  not 
interfered  with,34  and  that  a  purpresture  is  not  a  term  that  ap- 
plies to  a  wharf  built  upon  the  shore  of  a  navigable  .stream  bv  the 
proprietor  of  the  soil,  but  only  so  when  carried  so  far  into  the 
channel,  or  so  far  beyond  his  title,  as  to  become  a  nuisance.35    The 
authorities,  however,  are  not  in  harmony  upon  this  point,  it  being 
decided  in  many  cases  that  such  a  structure  constitutes  a   pur- 
presture.36    And  where  the  State  recognizes  a  right  to  construct 
piers  to  points  of  practical  navigability  having  reference  to  the 
manner  in  which  commerce  on  the  body  of  water  in  question  is 
conducted,  it  is  held  to  be  a  necessary  incident  of  such  riparian 
right  that  the  pier  shall  extend  a  sufficient  distance  into  the  water 
from  the  shore  so  as  to  reach  water  Which  will  float  any  sized  ves- 
sel engaged  in  such  commerce.37 

^  §  66.  Abatement  and  removal  of.-A  court  of  chancery  has 
jurisdiction  to  restrain  any  purpresture  or  unauthorized  appro- 
priation of  the  public  property  to  private  uses,  which  may  amount 
to  a  public  nuisance  or  may  injuriously  affect  or  endanger  the  pub- 
lic interest.38  This  jurisdiction  is  not,  however,  limited  to  those 
cases  where  the  purpresture  constitutes  a  public  nuisance,  and  it  is 

32.  Illinois     Central     Railroad    v.  35.  Harlan  &  Hollingsworth  Co   v' 
Illinois,  146  U.  S.  387,  446.  per  Mr.  Paschall,  5   Del.   Ch.   435-    Delaware 
Justice  Field.     See   Yates  v.  Milwau-  &  Hudson  Canal  Co.  v.  Lawrence    <> 
kee,  10  Wall.   (U.  S.)  497,  504;  Dut-  Hun  (N.  Y.),  163,  181,  per  Potter  J 
ton  v.   Strong,   1   Black    (U.  S.),   23,  affd.  56  N.  Y.  612. 

33'  36.  The     Idlewild,     64     Fed.     603. 

33.  Yates  v.  Milwaukee,   10  Wall.  604;  Sullivan  v.  Moreno,  19  Fla.  200, 
(U.    S.)    497,   504.  228;   Eisenbach  v.  Hatfield,  2  Wash.' 

34.  Prior  v.  Swartz,  62  Conn.  132,  St.  236,  249,  26  Pac.   539,   12  L    P 
25  Atl.  398,  18  L.  R.  A.  668,  36  Am.  A.  632. 

St.  R.  333;    East  Haven  v.  Heming-  37.  People  v.  Illinois  Cent.  R.  Co., 

way,    7    Conn.    186,   201.      See   Paine  91  Fed.  955,  958. 

Lumber  Co.  v.  United  States,  55  Fed.  38.  Attorney-General    v.    The   Co- 

854,    866     (Wis.    case);      People    v.  hoes   Co.,  6  Paige  Ch.    (N.  Y.)    133, 

Mould,  37  App.  Div.    (N.  Y.)    35,  55  29  Am.  Dec.  755. 

N.  Y.  Supp.  453,  revg.  24  Misc.   R. 

287,  52  N.  Y.  Supp.  1032. 

103 


§  66  PUEPRESTUKES. 

decided  that  a  purpresture  may  be  enjoined  and  abated  in  a  court 
of  equity39  without  regard  to  whether  it  is  in  fact  a  public  nuis- 
ance.41 The  words  of  the  court  in  a  recent  case  are  pertinent  in 
this  connection.  It  was  here  said :  "  In  England  there  were  sev- 
eral adverse  rights  to  be  considered  in  determining  whether  or  not 
a  riparian  owner  had  a  right  to  construct  a  wharf.  We  need  refer 
to  but  two  in  this  discussion.  There  was  the  king's  jus  privatum 
in  the  soil  covered  by  water,  and  there  was  the  jus  publicum,  which 
was  the  right  to  have  the  water  kept  free  from  obstructions  for 
the  purpose  of  navigation.  An  interference  with  this  latter  right 
was  a  nuisance,  and  would  be  abated  as  such.  It  is  stipulated  in 
the  case  at  bar  that  the  appellant's  wharf,  if  erected,  would  not 
obstruct,  interfere  with,  burden  or  prevent  navigation  upon  Lake 
Michigan.  This  question  is,  therefore,  not  in  the  case.  An  inva- 
sion of  the  king's  jus  privatum,  or  private  property  in  the  soil  cov- 
ered by  water,  was  a  purpresture.  It  is  laid  down  by  all  the  old 
writers  that  it  might  be  committed  either  against  the  king,  the  lord 
of  the  fee  or  any  other  subject.  A  purpresture  is  not  a  nuisance, 
unless  it  also  interferes  with  navigation.  It  may  be  abated  by  the 
crown  or  the  owner  of  the  shore,  or  restrained  by  injunction  at  the 
suit  of  the  attorney-general,  whether  it  creates  a  nuisance  or  not 
The  remedy  for  the  crown  was  either  by  an  information  of  intru- 

39.  Revell  v.  People,  177  111  468,  Brewst.  (Pa.)  320  (holding  that  a 
52  N.  E.  1052,  43  L.  R.  A.  790.  bill  to  restrain  a  purpresture  can  be 

40.  People  v.  Vanderbilt,  28  N.  Y.  maintained  by  a  municipal  corpora- 
396,  84  Am.  Dec.  351  (holding  that  a  tion  or  by  a  private  individual  with- 
purpresture  in  a  bay  or  navigable  out  a  joinder  of  the  commonwealth, 
river  may  be  so  abated).  Hicks  v.  41.  People  v.  Vanderbilt,  26  N.  Y. 
Smith,  109  Wis.  532,  85  N.  W.  512;  287,  293;  Hicks  v.  Smith,  109  Wis. 
Attorney-General  v.  Richards,  2  532,  85  N.  W.  512;  But  see  Harlan 
Anst.  603.  &    Hollingsworth    Co.   v.    Paschall,    5 

"  The     appropriation     by     an     in-  Del.  Ch.  435. 
dividual       of       a       public       common  "  The  decided  weight   of   authority 

may  therefore  be  a   purpresture   and  is  that  a  purpresture  may  be  enjoined 

as  it  would  constitute  an  invasion  of  or   abated   in    a   court    of   equity   al- 

a  public  right  it  would  be  proper  that  though   it  is  not   injurious   or  not  a 

proceedings  for  its  abatement  should  public  nuisance."     Revell  v.  The  Peo- 

be  taken  on  behalf  of  the  state."  At-  pie  of  State  of  111.   177  111.  468,  482, 

torney-General  v.  Evart  Booming  Co.,  52  N.  E.  1052,  69  Am.  St.  R.  257,  43 

34  Mich.  462,  per  Cooley,  C.  J.     See  L.  R.  A.  790,  per  Mr.  Justice  Craig. 
City    of   Philadelphia    v.     Crump,    1 

104 


PUBPRESTURES.  §  66 

sion  at  the  common  law,  or  by  an  information  at  the  suit  of  the 
attorney-general  in  equity.  In  case  of  a  judgment  upon  an  infor- 
mation of  intrusion,  the  erection  complained  of,  whether  it  was 
a  nuisance  or  not  was  abated.  But  upon  a  decree  in  equity,  if  it 
appeared  to  be  a  mere  purpresture  without  being  at  the  same  time  a 
nuisance,  the  court  might  direct  an  inquiry  to  be  made  whether  it 
was  more  beneficial  to  the  crown  to  abate  the  purpresture  or  to 
suffer  the  erection  to  remain  and  be  anented."42 

42.  Cobb  v.  Commissioners  of  Lin-      E.  5,  95  Am.  St.  R.  258,  63  L.  R.  A. 
coin  Park,  202  111.   427,  433,   67   N.      264,  per  Mr.  Justice  Carter. 


105 


CHAPTER  VI. 

Legalized  and  Statutory  Nuisances. 

Section     67.  Legalized  nuisances. — Generally. 

68.  Acts  authorized  by  legislature. — English  rule. 

69.  Same  subject. — American  rule. 

70.  Same   subject. — Application  of  rule. 

71.  Same  subject. — Continued. 

72.  Rule  of   construction  of  such   statutes. 

73.  Legislative  authorization. — Nuisance  from  manner  of  doing  act. 

— Rules. 

74.  Same   Subject. — Application   of   rules. 

75.  Same    subject. — Railroads. 

76.  Where  statute  permissive. — Locality  not  designated. 

77.  Mere  recognition  by  statute  of  a  business  or  occupation. 

78.  Acts   authorized   by    municipality. 

79.  Same  subject. — Continued. 

80.  Same  Subject. — Limitations  on  power  of  municipality. 

81.  Statutory   nuisances   in    general. 

82.  Constitutionality  of  such  acts. 

83.  Power  of  legislature  to  declare  nuisances  illustrated. 

84.  Power  of   legislature  to  delegate   authority   to  municipality. 

§  67.  Legalized  nuisances  generally. — It  is  a  general  rule  that 
an  act  which  has  been  authorized  by  law  cannot  be  a  public  nuis- 
ance,1 and  that  the  State  cannot  prosecute  as  a  nuisance  that  which 
it  has  authorized.2  So,  it  has  been  decided  that  works)  of  internal 
improvement  which  have  been  erected  by  the  State  for  the  benefit 
of  its  citizens  do  not  become  a  public  nuisance  from  the  fact  that 
the  neighborhood  is  thereby  rendered  unhealthy  by  the  obstruction 
of  running  water  and  consequent  overflowing  of  adjoining  lands, 
and  that  the  character  of  such  works  is  not  changed  by  the  fact  that 
they  are  transferred  to  a  private  corporation  which  is  required  to 

1.  Transportation    Co.   v.    Chicago,  34  Pa.  275,  75  Am.  Dec.  61.     See  sub- 

99  U.  S.  635 ;   Hinchman  v.  Paterson  sequent  sections  in  this  chapter. 

Horse  R.   Co.,    17   N.  J.   Eq.    75,   86  2.  Chope     v.     Detroit     &     Howell 

Am.  Dec.  252;   Masterson  v.  Short,  3  Plank  Road  Co.,  37  Mich.  195,  26  Am. 

Abb.  Prac.  N.  S.  (N.  Y.)  154,  33  How.  Rep.   512;  People  v.  New  York  Gas 

Prac.   481;     Commonwealth  v.  Reed.  Light  Co.,  64  Barb.   (N.  Y.)   55. 

106 


Legalized  and  Statutory  Nuisances.  §  67 

» 
maintain  the  same  for  the  purposes  of  their  creation.3  So,  where 
the  construction  of  a  dam  at  a  specified  place  in  a  particular  man- 
ner and  of  a  certain  height'  has  been  expressly  authorized  by  the 
legislature,  the  one  constructing  it  in  accordance  with  such  author- 
ization is  not  liable  to  an  indictment  for  a  public  nuisance  created 
thereby.4  And  where  a  company  has  been  so  authorized  to  manu- 
facture gas  to  be  used  for  lighting  streets  and  buildings,  it  has  been 
decided  that  if  its  buildings  and  processes  are  of  the  best,  its  ser- 
vants careful  and  it  has  used  due  care  and  diligence  in  the  busi- 
ness, it  is  not  liable  to  an  indictment  for  creating  a  nuisance  by  un- 
wholesome smells  and  smoke  resulting  therefrom.5  And  where  a 
plank  road  company  was  authorized  by  its  charter  to  construct  a 
road  from  within  the  city  of  Detroit  and  to  erect  gates  at  such 
points  as  they  should  select  subject  to  this  limitation  that  none 
should  be  erected  within  the  city  it  was  decided  that  this  limitation 
contemplated  the  city  as  it  was  at  the  time  in  respect  to  the  limits 
and  should  be  so  construed,  and  that  the  maintenance  of  a  gate 
could  not  be  substantially  enjoined  at  the  suit  of  the  State  because 
of  the  fact  that  there  had  been  an  extension  of  the  city  limits  so 
as  to  include  a  gate  which  the  company  had  erected.8  So,  a  tele- 
phone pole,  the  erection  of  which  has  been  authorized  by  the  State 
and  municipality,  is  not  a  nuisance  where  it  does  not  specially  in- 
terfere with  the  use  by  adjoining  owners  of  their  property  or 
invade  some  vested  right.7  And  where  a  bridge  over  a  navigable 
river  had  been  declared  a  nuisance  by  a  decree  of  court  but  was 
made  a  lawful  structure  by  a  subsequent  act  of  Congress,  it  was 
decided  that  an  attachment  against  the  proprietors  of  the  bridge 
for  disobeying  an  injunction  against  the  rebuilding  of  it  after  it 
had  been  destroyed  should  not  be  issued,  the  injunction  having 
been  granted  after  the  passage  of  the  act  and  before  it  was  de- 
termined to  be  invalid.8  The  general  rule,  however,  does  not  mean 
that  an  act  must  be  unlawful  in  order  to  constitute  a  nuisance  as 

3.  Comonwealth    v.    Reed,    34    Pa.  Plank   Road    Co.,    37    Mich.    195,    26 
275,  75  Am.  Dec.  661.  Am.  Rep.  512. 

4.  Stou-hton  v.  State,  5  Wis.  291.  7.  Irwin   v.    Great  Southern   Tele- 

5.  People  v.  New  York  Gas  Light  phone  Co.,  37  La.  Ann.  63 

Co.,  64  Barb.   (N.  Y.)   55.  8.  State  of  Pennsylvania  v.  Wheel- 

6.  Chope     v.     Detroit     &     Howell       ing  &  B.   B.   Co.,    18   How.    (U.   S  ) 

421,  15  L.  Ed.  435. 

107 


§§  68,  69  Legalized  and  Statutory  ^Nuisances. 

act's  which  are  perfectly  lawful  may  work   actionable  injury  to 
others.9 

§  68.  Acts  authorized  by  Legislature — English  rule. —  In  Eng- 
land  the  rule  prevails  that  an  act,  if  expressly  authorized  by  par- 
liament, and  if  done  in  accordance  with  the  authority  conferred, 
cannot  be  a  nuisance,  and  though  injury  may  result  to  another  he 
cannot  recover  therefor.10  So,  it  has  been  declared  in  an  English 
case  that  "  when  the  legislature  has  sanctioned  and  authorized  the 
use  of  a  particular  thing  and  it  is  used  for  the  purpose  for  which 
it  was  authorized,  and  every  precaution  has  been  observed  to  pre- 
vent injury,  the  sanction  of  the  legislature  carries  with  it  this  con- 
sequence that  if  damage  results  from  the  use  of  such  thing  inde- 
pendently of  negligence,  the  party  using  it  is  not  responsible-  It 
is  consistent  with  policy  and  justice  that  it  should  be  so."11  And 
an  act  done  under  pursuance  of  a  provisional  order  of  the  board  of 
trade  is  protected  in  England  to  the  same  extent  as  other  nuisances 
done  under  statutory  authority.12 

§  69.  Same  subject — American  rule. —  This  rule,  however,  does 
not  prevail  in  this  country  to  the  same  extent.  The  power  of  the 
legislature  is  here  recognized  as  omnipotent  within  constitutional 
limits,13  while  it  may  legalize  an  act  which  might  otherwise  be  a 
nuisance,  it  cannot  authorize  the  taking  of  private  property  for 
public  use  without  just  compensation.14     And   the  rule   may  be 

9.  Delaware  &  Raritan   Canal   Co.  13.  People   v.    New   York    Gas    L. 
v.  Lee,  22  N.  J.  L.  243.     See  sections       Co.,  64  Barb.   (N.  Y.)   55,  70. 
following.                                                             14.  Chicago,  G.  W.  R.  Co.  v.  First 

10.  Sadler  v.  City  of  New  York,  Methodist  Episcopal  Church,  102 
40  Misc.  R.  (N.  Y.)  78,  81  N.  Y.  Fed.  85,  42  C.  C.  A.  178,  50  L.  R.  A. 
Supp.  308.  44S :   Miller  v.  Webster  City.  94  Iowa. 

11.  Vaughan  v.  Taff  Vale  Ry.  Co.,  162,  62  N.  W.  648;  Sadlier  v.  City 
5  H.  &  N.  679,  685,  per  Cockburn,  C.  of  New  York.  40  Misc.  R.  (N.  Y.)  78. 
J.     See,  also,  Rex  v.  Pease,  4  B.  &  81  N.  Y.  Supp.  308. 

Ad.  30.  Where     a     statute     authorizes 

12.  National  Teleph.  Co.  v.  Baker  the  taking  of  land  by  a  munici- 
(1893),  2  Ch.  186,  68  L.  T.  (N.  S.)  pality  for  the  construction  of  a  sewer 
283,  so  holding  in  the  ease  of  a  cur-  and  the  making  of  compensation 
rent  of  electricity  being  discharged  therefor,  it  is  held  not  to  refer  to 
into  the  earth  under  such  authority.  lands    not    actually    taken,    and    the 

108 


Legalized  akd  Statutory  Nuisajtces.  §  89 

stated  to  be  thai  where  one  has  the  sanction  of  die  State  for  what 
be  does  unlese  he  commit*  a  fault  in  the  manner  of  doing  it  he 
is  completely  justified,  provided  the  legislature  has  the  constitu- 
tional power  to  act.15    And  the  legislature  may,  except  so  far  as 
it  may   be  limited    by  constitutional   restriction--,    when   deemed 
necessary  for  the  public  good,  permit  or  require  that  to  be  done 
which  would,  on  common  law  principles,  and  without  the  statute 
be  deemed  a  nuisance.16    And  it  is  a  general  rule  that  where  an  act 
is  made  lawful  by  legislative  sanction,  annoyances  in  connection 
therewith  must  be  borne  by  the  individual  subject  to  thig  qualifi- 
cation that  the  act   musl  be  done  without  negligence  or  unn< 
-»ry  dist  urban-  by  the  one  doing  it,  of  the  righte  of  others."  So  it 
hag  been  declared  that  "  when  the  legislature  directs  or  allows  that 
to  be  done  which  would  otherwise  be  a  nuisance,  it  will  be  valid 
upon  the  ground  that  the  legislature  i,  ordinarily  the  proper  judge* 
d  v.  hat  the  public  good  requires,  unless  carried  to  such  an  extent 
that  it  can  fairly  be  said  to  be  an  unwholesome  and  unreason 
law.         And  where  legislative  authority  is  granted  for  the  , 
struction  of  a  work  of  public  utility,  upon  making  compensation, 
the  one  constructing  it  is  liable  only  for  such  injury  as-  result, 
from  the  want  of  due  skill  and  care  in  exercising  the  power  con- 
ferred.    So,  this  principle  has  been  applied  where,  under  such  cir- 
cumstances, one  interferes  with  the  current  of  a  running  stream.19 

remedy   of   one   who   sustains   an    in-  10   ft   E.  29,  39  Am.  &   Eng    R    Cas 

jury  from  noxious  odors  from  works  259 

which  have  been  constructed  by  the  "  l7.  Sawyer  v.  Davie,  136  Mas*. 
city  to  treat  the  sewage  is  held  not  239,  49  Am.  Dec.  27:  Watson  v  Fair- 
to  be  by  proceedings  under  the  stat-  mont  &  ft  Ry.  Co  '  49  W  Va  528 
ute  but  by  an  action  at  law.  Bacon  39  ft  E.  193.  See  New  Albany  &Y 
v.  Boston    154  Mass.  100,  28  X.  E.  9.  R.  Co.  v.   Hegman,  18  Ind.  77;  Da* 

P   R    ^"vV    «CW   J'""   Cent  "■    V-    Kp°kuk    Water    Works,    61 

u"  fc '  ;  V«  '  '  CU,Tier  IOWa'  549'  16  N-  W-  7055   Coleman  v. 

■  West  Side  E.  P.  P.  Co.,    Fed.  Cas.  City  of  New  York,  70  App    Div    m 

No.  3493,  6  Blatchf.  C.  C.  487;  Will-  Y.)  218,  75  N.  Y.  Supp.  342   affd    M 

iams  v.  New  York  Cent.  R.  R.  Co.,  18  N.E.I  106. 
Barb.   (X.  Y.)   222  l  «    «      '  ^     . 

lfi    P.ff  i  A    p    c      T  .Sawyer    v.    Davis,     136    Mass. 

16.  Pittsburg,  C.  &  St.  L.  Ry.  Co.  239,   241,   49   Am.   Dec.    27     per     U- 

v.   Brown,  67  Ind.   145,  33  Am.  Pep.  len   J 

73;   People  v.  New  York  Gas  L.  Co.,  i9.  Bellinger   v.    New   York    Cent 

«4  Baro.    (N.  Y.)    55,  70;     Taylor  v.  R.    R.    Co.,    23   X.    Y.    43.     See   C  u 

Baltimore  &  O.  R.  Co.,  33  W.  Va.  39,  hocton  Stone  Road  Co.  v.  Buffalo.?  X. 

109 


§  69i  Legalized  and  Statutory  Nuisances. 

Mere  legislative  authority,  however,  to  carry  on  a  certain  business 
or  occupation,  does  not  confer  any  license  or  authority  to  continue 
the  same  after  it  has  become  a  nuisance.  Legislative  authority  to 
create  a  nuisance  cannot  be  inferred  from  such  an  authority,  but 
the  business  must  be  conducted  within  the  limits  of  the  law.20 
Again,  though  a  nuisance  may  be  legalized  and  therefore  protected 
from  indictment  or  against  any  interference  with  it  as  a  public 
nuisance,  it  is  decided  that  the  one  maintaining  it  may,  neverthe- 
less, be  liable  to  an  individual  for  damages  he  may  sustain  there- 
from.21 This  principle  has  been  applied  in  the  case  of  an  elevated 
railway  constructed  in  a  street  by  authority  from  the  legislature 
where  it  was  claimed  that  the  residence  of  the  plaintiff  was  ren- 
dered undesirable  and  reduced  in  value  by  reason  of  the  noises, 
stenches,  and  obstruction  of  light  and  air  caused  by  the  construc- 
tion and  operation  of  the  road.  The  company  by  reason  of  inabil- 
ity, was  unable  to  make  reparation  and  it  was  decided  that  an  in- 
junction should  be  granted.22  The  court  said  in  this  case :  "  It  is 
claimed  that  the  legislature  have  legalized  this  road,  and  therefore 
it  is  not  a  nuisance.  It  is  admitted  it  is  not  a  public 
nuisance  as  it  would  be  if  the  legislature  had  not  legalized  it.  The 
statutes  effectually  protect  the  company,  if  it  complies  with  the 
conditions,  from  an  indictment,  and  against  any  interference  with 
its  work,  as  a  public  nuisance  on  account  of  the  fee  in  the  streets ; 
but  not  against  claims  for  private  damages  arising  from  injuries 
to  adjacent  owners.  The  company  may  occupy  the  streets,  but  it 
must  occupy  them  at  its  peril  in  a  way  not  to  directly  or  imme- 
diately injure  private  rights.  .  .  .  No  one  will  question  the 
utility  of  the  elevated  railroad  as  a  public  improvement  of  great 
convenience  and  accommodation  to  the  city  and  the  public  at 
large,  but  these  accommodations  cannot  authorize  or  justify  its  in- 
vasions on  the  rights  of  any  portion  of  our  citizens.  The  individ- 
ual whose  property  is  affected  because  the  road  is  of  great  public 
value,  should  be  indemnified  and  fully  compensated  by  the  public 
or  by  the  company,  which  profits  by  the  improvement,  for  any  loss 
or  damage  he  has  or  may  have  sustained."23 

Y.  &  E.  R.  R.  Co.,  3  Hun    (N.  Y.),  21.  Caro  v.  Metropolitan  Elev.  Ry. 

523.  Co.,  46  N.  Y.  Super.  Ct.  138,  166. 

20.  State  of  Missouri  v.  Board  of  22.  Caro  v.  Metropolitan  Elev.  Ry. 

Health,  16  Mo.  App.  8.  Co.,  46  N.  Y.  Super.  Ct.  138. 

23.  Per  Spier,  J. 

110 


Legalized  and  Statutory  Nuisances.  §  70 

§  70.  Same  subject — Application  of  rule. — A  railroad  which  is 
a  lawful  structure,  and  the  use  of  steam  thereon,  being  lawful, 
neither  the  use  of  the  road  nor  of  the  steam  power  will,  independ- 
ent of  any  negligence  or  unskillfulness  in  the  construction  of  the 
road  or  of  any  abuse  in  the  manner  of  the  use,  constitute  a  public 
nuisance,24  though  it  is  held  otherwise  where  it  is  constructed  un- 
der an  act  which  is  unconstitutional.25  So,  it  has  been  decided  that 
in  respect  to  the  noises,  smoke,  vapor  or  other  discomforts  arising 
from  the  ordinary  use  of  a  railroad  upon  a  street,  the  occupant  or 
owner  of  a  lot  and  dwelling  house  upon  such  street  is  no  more 
entitled  to  recover  damages  from  the  owner  of  such  road  than  any 
citizen  who  resides  or  may  have  occasion  to  pass  so  near  the  street 
as  to  be  subjected  to  like  discomforts.26  So,  where  a  railroad  com- 
pany is  authorized  by  statute  to  construct  a  railroad  and  condemns 
its  right  of  way  and  damages  are  assessed  under  the  statute,  in  the 
absence  of  any  negligence,  unskillfulness  or  mismanagement  in  the 
construction  of  an  embankment  or  the  road  bed,  the  injury  thereby 
done  to  the  property  of  an  individual,  must  be  considered  as  the 
natural  and  necessary  consequence  of  what  the  corporation  had 
acquired  the  lawful  right  to  do,  and  such  damages  must  be  taken 
to  have  been  included  in  the  compensation  assessed  or  as  damnum 
absque  injuria.21  And  the  legislature  may  authorize  an  obstruction 
in  a  highway  which  would  otherwise  be  a  nuisance,28  or  the  con- 
struction of  a  bridge  over  a  navigable  river,29  or  of  a  bridge  where 

24.  Miller  v.  Long  Island  R.  Co.,  R.  Co.  v.  Lake  View,  105  111.  207,  44 

Fed.    Cas.   No.   9580a;  Evans   v.    Sa-  Am.  Rep.  788,  790. 

vannah  &  W.   R.  Co.,  90  Ala.  54,  7  25.  Astor  v.  New  York  Arcade  Ry. 

So.  758;  Vason  v.  South  Carolina  R.  Co.,  3  N.  Y.  St.  R.  188. 


Co.,  42  Ga.  631;  Davenger  v.  Chi 
cago  &  G.  T.  R.  Co.,  98  Ind.  153 
Randle  v.  Pacific  Railroad,  65  Mo 
325;  Baxter  v.  Spuyten  Duyvil  &  P, 
M.  R.  Co.,  61  Barb.  (N.  Y.)  428 
Morgan  v.  Norfolk  S.  R.  Co.,  98  N 
C.   247,   3   S.    E.   506;  Attorney-Gen 


26.  Parrolt  v.  Cincinnati  H.  &  D. 
R.  Co.,  10  Ohio  St.  624.  But  see 
Caro  v.  Metropolitan  Elev.  Ry.  Co., 
46  N.  Y.  Super.  Ct.  138,  166. 

27.  Clark's  Adm'x  v.  Hannibal  & 
St.  J.  R.  Co.,  36  Mo.  202. 

28.  Northern   Transp.    Co.   v.   Chi- 


eral  v.  Pope,  N.  B.  Eq.  Cas.  272.  cago,  99  U.   S.  635,   25  L.  Ed.   338; 

The  unauthorized  use  of  steam  Perry  v.  New  Orleans  M.  &  C.  R.  Co., 

as  a  motive  power  creates  a  nuisance.  55  Ala.  413;   Dubach   v.  Hannibal  & 

Hussull  v.  Brooklyn  City  R.  Co.,"  114  St.  J.  R.  Co.,  89  Mo.  483,  1  S.  W.  86. 
N.  Y.  433,  21   N.  E.    1002,  23  N.  Y.  29.  Jolly    v.    Terre    Haute    Draw- 

St.  R.  856.     See  North  Chicago  City  bridge  Co.,  6  McLean   (U.  S.),  237. 

Ill 


§  71  Legalized  and  Statutory  Nuisances. 

it  does  not  obstruct  navigation.30  And  where  authority  is  con- 
ferred by  statute  upon  certain  public  officials  to  erect  public  build- 
ings, they  will  not  be  restrained  in  a  suit  in  equity  from  erecting 
a  jail,  which  is  a  public  necessity,  near  the  residences  of  the  peti- 
tioners on  the  ground  that  it  constitutes  a  nuisance  and  the  value 
of  their  property  will  thereby  be  diminished.31  So,  where  a  per- 
son is*  authorized  by  statute  to  use  a  certain  part  of  the  public  road 
for  his  purposes  and  the  portion  taken  does  not  exceed  that  allowed 
by  law,  the  taking  being  in  pursuance  of  law,  cannot  be  called  a 
public  nuisance.32  And  though  the  construction  of  street  car 
tracks  in  a  street  might  so  interfere  with  the  rights  of  the  owners 
of  lots  which  front  on  the  street  as  to  constitute  a  private  nuisance 
if  not  authorized  by  law,  yet  if  done  under  authority  of  a  statute 
in  a  lawful  manner,  no  action  will  lie  where  there  has  been  no 
negligence  or  misconduct  in  constructing  such  tracks  or  in  their 
use.33  A  street  railway  must,  however,  in  order  to  bring  it  within 
the  protection  of  this  general  rule,  be  laid  in  the  manner  author- 
ized.34 

§  71.  Same  subject — Continued.— A  canal  which  is  con- 
structed under  authority  from  the  sovereign  power  of  the  State  is 
not,  unless  improperly  constructed  or  maintained,  a  public  nuis- 
ance.35 And  where  a  railroad  company  is  required  by  law  to  pro- 
vide facilities  at  its  stations  for  receiving  freight  and  to  receive 
and  transport  all  live  stock  offered  for  transportation,  it  may  es- 
tablish and  maintain  stockyards  near  its  stations  and  will  not  be 
liable  for  a  nuisance  therefor,  where  it  does  not  appear  that 
the  location  was  not  reasonably  proper  or  that  the  com- 
pany   did    not    exercise    reasonable    care    and    diligence    in    the 

30.  State  v.  Parrolt,  71  N.  C.  311,  private  nuisance.  People  v.  Law, 
17  Am.  Rep.  5.  34  Barb.   (N.  Y.)  494,  514. 

31.  Bacon  v.  Walker,  77  Ga.  336.  34.  Durbach  v.  Hannibal  &  St.  J. 

32.  Danville,  Hazelton  &  W.  R.  R.  R.  Co.,  89  Mo.  483,  1  S.  W.  86.  See 
Co.  v.  Commonwealth,  73  Pa.  29,  38;  Cain  v.  Chicago,  R.  I.  &  P.  R.  Co., 
Atorney-General  v.  Pope,   N.   B.   Eq.  54  Iowa,  255,  3  N.  W.  736. 

Cas.  272.  35.  Paterson  v.  City  of  Duluth,  21 

33.  People  v.  Kerr,  27  N.  Y.  185,  Minn.  493.  See  Butler  v.  State,  6 
193.  Ind.  165. 

It   is    neither    a   public    nor    a 

112 


Legalized  and  Statutory  Nuisances.  §  71 

maintenance  of  such  yards.36  So,  where  a  statute  authorizes  the 
sinking  of  a  shaft  for  a  tunnel,  all  things  reasonably  necessary  for 
the  accomplishment  of  the  work  are  included  in  the  power  con- 
ferred and  there  is  no  liability  for  noise  in  connection  with  the 
pumping  where  such  noise  is  not  unreasonable.37  And  the  con- 
struction by  a  city,  in  accordance  with  statute,  of  a  sewer  as  an 
outlet  to  its  sewage  farm  has  been  held  in  California  not  to  be  a 
nuisance,  it  being,  however,  declared  that  the  fact  that  it  may 
cause  loss  or  injury  to  others  for  which  they  may  be  entitled  to 
compensation,  is  another  matter.38  In  a  case  in  Canada,  however, 
it  was  decided  that  a  corporation  which  was  authorized  by  its  char- 
ter to  do  all  things  necessary  for  the  construction  and  operation  of 
its  works  and  to  carry  out  the  objects  of  the  corporation  subject  to 
the  laws  of  the  province  and  the  laws  and  ordinances  of  the  city, 
but  which  had  no  exclusive  right  to  make  or  supply  gas  and  was 
not  required  to  furnish  gas  and  which  had  no  right  to  condemn 
property  but  only  to  acquire  it  by  purchase  the  same  as  an,  indi- 
vidual, was  liable  for  a  nuisance  the  same  as  a  private  individual, 
the  authority  to  construct  its  works  not  amounting  to  a  legislative 
authority.39  The  sale  of  liquors  may  likewise  be  permitted  by 
license  from  the  State,  and  being  thus  a  legally  legitimate  business, 
it  is  not  a  nuisance  per  se  or  a  thing  or  occupation  that  must  neces- 
sarily become  a  nuisance.40  So,  the  legislature  may  authorize  the 
ringing  of  factory  bells  at  certain  hours  though  the  ringing  of  such 

36.  Dolan  v.  Chicago,  M.  &  St.  P.  is   held   not   liable   for   the    nuisance 

R.  Co.,  118  Wis.  362,  95  N.  W.  385.  thus  caused.     Illinois  Central  Ry.  Co. 

A  railroad  company  must  ex-  v.  Grabill,  50  111.  241.     See  Anderson 

ercise  such,  care  and  supervision  v.  Chicago,  M.  &  St.   P.  Ry.  Co.,  85 

over  stockyards   maintained  by  it  as  Minn.  337,  88  N.  W.   1001. 

to    insure    their    cleanliness,    and    in  37.  Harrison      v.      Soutlnvark      & 

case  of  a  failure  to  perform  this  duty  Vauxhall  W.  Co.    (1891),  2  Ch.  409. 

and  a  nuisance  arises  in  consequence  38.  Pasadena   v.   Stimson,   91    Cal. 

thereof      which      injures      adjoining  238,  27  Pac.  604. 

property  it  will  be  liable  in  damages  39.  Francklyn  v.  People's  Heat  & 
therefor.  Where,  however,  a  nuisance  L.  Co.,  32  N.  S.  44. 
is  caused  by  the  noise  and  shouting  of  40.  De  Blanc  v.  Town  of  New 
those  in  charge  of  the  stock  which  is  Iberia,  106  La.  680,  31  So.  311.  Ex- 
placed  in  such  a  yard  and  the  com-  amine  Pearce  v.  State,  35  Tex.  Crim. 
pany  has  no  control  over  such  per-  R.  150,  32  S.  W.  697.  As  to  intoxi- 
sons  and  does  not  encourage  them,  it  eating  liquors,  see  §       ,  herein. 

113 


§  73  Legalized  and  Statutory  Nuisances. 

bells  has  been  previously  enjoined  as*  a  nuisance.41  And  it  may 
likewise  require  railroad  companies  to  sound  whistles  on  their 
trains  when  approaching  a  crossing.42 

§  72.  Rule  of  construction  of  such  statutes. — In  the  determi- 
nation of  the  question  whether  a  statute  authorized  the  doing  of  a 
certain  act  which  would  be  a  nuisance  if  not  so  authorized,  the  rule 
applies  that  statutes  in  derogation  of  private  rights  or  which  may 
result  in  imposing  burden  upon  private  property,  are  to  be  strictly 
construed.  In  such  cases  the  statutory  sanction  necessary  to  jus- 
tify such  act  must  be  given  either  expressly  or  by  clear  and 
unquestionable  implication  from  the  powers  conferred  so  as  to 
show  that  the  legislature  intended  and  contemplated  the  doing  of 
the  very  act  in  question.43  Such  statutes  should  receive  a  strict 
construction,44  and  it  will  not  be  assumed  that  the  legislature  in- 
tended to  authorize  a  nuisance  unless  this  is  the  necessary  result 
of  the  powers  granted.45  So,  a  statute  which  confirms  the  location 
and  construction  of  a  railroad  already  completed  will  not  be  con- 
strued as  exempting  the  corporation  from  liability  for  unnecessary 
and  unreasonable  encroachments  or  from  a  nuisance  arising  from 
the  manner  in  which  it  has  constructed  or  is  maintaining  a  part 
of  the  road  at  the  time  of  the  enactment.46  And  an  act  of  the  legis- 
lature which  legalizes,  for  the  time  being,  erections  in  a  munici- 

41.  Sawyer  v.  Davis,  136  Mass.  New  York,  N.  H.  &  H.  R.  R.  Co.,  103 
239,  49  Am.  Dec.  27.  As  to  bells  a  N.  Y.  10,  8  N.  E.  537,  57  Am.  Rep. 
nuisance,  see  §   179,  herein.  701;   Pensylvania   Railroad  Co.'s  Ap- 

42.  Pittsburg,  C.  &  St.  L.  R.  Co.  v.  peal,  115  Pa.  514,  5  Atl.  872;  Reg 
Brown,  67  Ind.  45,  33  Am.  Rep.  73.  v.  Bradford  Nav.  Co.,  6  B.  &  S.  631. 
•As  to  whistles  a  nuisance,  see  §  180,  See  Woodruff  v.  North  Bloomfield 
herein.  Gravel  Min.  Co.,  18  Fed.  753. 

43.  Pine  City  v.  Munch,  42  Minn.  44.  Mayor  of  Jersey  City  v.  Cen- 
342,  44  N.  W.  197,  6  L.  R.  A.  763;  tral  Railroad  Co.  of  N.  J.,  40  N.  J. 
Morton  v.  Mayor  of  New  York,  140  Eq.  417,  22  Atl.  262 ;  Hughes  v.  Prov- 
N.  Y.  207,  212,  35  N.  E.  490,  55  N.  idence  &  Worcester  R.  R.  Co.,  2  R.  I. 
Y.  St.  R.  413,  22  L.  R.  A.  241;  Hill  493,   505. 

v.  Mayor  of  New  York,  139  N.  Y.  495,  45.  Bacon    v.    Boston,    154    Mass. 

34  N.  E.  1090,  54  N.  Y.  St.  R.  797;  100,  28  N.  E.  9. 

Bohan  v.  Port  Jervis  Gas  L.  Co.,  122  46.  City   of  Salem  v.   Eastern  R. 

N.  Y.  18,  25  N.  E.  246,  33  N.  Y.  St.  Co.,  98  Mass.  431,  96  Am.  Dec.  650. 
R.  246,  9  L.  R.  A.  711";  Cogswell  v. 

114 


Legalized  and  Statutory  Nuisances.        §§  73,  74 

pality,  which  are  at  the  time  a  nuisance,  is  to  be  construed  as  sim- 
ply a  license  to  continue  the  same  which  may  be  subsequently 
revoked  by  the  legislature,  nothing  having  been  done  or  suffered  as 
a  consid?ration  for  the  license  which  caused  it  to  partake  of  the 
nature  of  a  contract.47 

§  73.  Legislative  authorization — Nuisance  from  manner  of  do- 
ing act — Rules. — There  is  a  distinction  between  parliamentary 
powers  to  do  acts  which  necessarily  involve  the  commission  of  nuis- 
ances and  powers  which  may  possibly  be  exercised  without  giving 
rise  to  nuisances.48  Where  the  legislature  authorizes  an  act  which 
doesi  not  necessarily  result  in  a  nuisance  but  such  a  result  flows 
from  the  manner  in  which  the  act  is  done,  the  legislative  license 
is  no  defense.49  So,  though  a  corporation  may  be  authorized  by 
law  to  do  a  certain  act,  it  must  so  use  its  powers  as  not  to  injure 
another.  The  fact  that  a  work  is  a  lawful  and  beneficial  one  will 
not  relieve  the  party  constructing  it  from  liability  to  another  who 
is  injured  by  its  improper  and  unskillful  construction.  The  grant 
of  a  franchise  by  the  State  to  a  person  does  not  confer  upon  him 
the  right  to  inflict  damage  upon  another  which  by  reasonable 
caution  could  have  been  prevented.50 

§  74.  Same  subject — Application  of  rules. — Legislative  author- 
ity to  construct  a  work  does  not  exempt  one  from  liability  for 
injury  from  the  use  of  any  means  which  may  be  necessary  for  the 
convenient  prosecution  of  the  work  such  as  storing  with  impunity 
in  a  convenient  place  of  so  much  explosives  as  may  be  necessary 
for  the  prosecution  of  the  work,  without  regard  to  the  safety  of 
others.51  And  one  who  has  a  contract  with  the  State  for  enlarging 
a  public  canal  may  not  claim  that  by  virtue  of  his  contract  he  has 

47.  Councils  of  Reading  v.  Com-  (N.  Y.)  243,  48  N.  Y.  Supp.  990. 
raonwealth,  11  Pa.  196,  51  Am.  Dec.  See  Cleveland,  C,  C.  &  St.  L.  R.  Co., 
534.  67  111.  App.  351. 

48.  Attorney-General  v.  Metropoli-  50.  Taylor  v.  Baltimore  &  O.  R. 
tan  Board  of  Public  Works,  1  Hem.  Co.,  33  W.  Va.  39,  46,  10  S.  E.  29. 
&  M.  298.  See,  also,  Woodruff  v.  North  Bloom- 

49.  Pine  City  v.  Munch,  42  Minn.  field  Gravel  M.  Co.,  18  Fed.  753. 
342,  44  N.  W.   197,  6  L.  R.  A.  763;  51.  McAndrews   v.    Collerd,   42   N. 
Kobbe  v.  New  Brighton,  23  App.  Div.  J.  L.  189,  36  Am.  Rep.  508. 

115 


§  75  Legalized  and  Statutory  Nuisances. 

such  a  delegation  of  sovereign  power,  as  that  he  can  of  his  own 
motion  confiscate  private  property  to  the  public  use  permanently 
or  temporarily.52  And  one  who  has  entered  into  a  contract  with 
a  city  for  the  construction  of  a  reservoir,  acquires  no  right,  by 
reason  of  the  fact  that  the  work  was  authorized  by  the  legislature, 
to  create  and  maintain  a  nuisance  by  the  operation  of  a  railway 
track  for  the  purpose  of  carrying  away  the  earth  from  the  excava- 
tion, especially  where  it  appears  that  another  route  equally  avail- 
able could  have  been  selected.53  So,  in  the  construction  of  public 
works  such  as  a  sewage  system,  it  is  unjustifiable  to  so  construct 
and  conduct  the  works  as  for  the  mere  purpose  of  saving  expense, 
to  seriously  injure  the  property  rights  of  individuals.54  So,  a  license 
to  conduct  a  liquor  business  will  afford  a  person  no  protection  from 
the  civil  consequences  of  acts  and  practices  upon  the  premises 
which  are  unlawful  and  immoral.55  And  though  a  person  may  have 
a  license  to  conduct  a  concert  hall,  yet  he  may,  by  the  use  of  such 
license,  create  a  nuisance  as  where  by  such  use  disorderly  crowds 
collect  and  conduct  themselves  in  a  boisterous  manner  and  lewd 
women  are  presented  to  the  public  view  in  indecent  attire  and  their 
conduct  is  lascivious1.56  Again,  though  a  person  may  be  authorized 
by  an  act  of  the  legislature  to  erect  and  maintain  a  dam  in  a  navig- 
able river,  yet  if  the  dam  is  so  built  as  to  obstruct  navigation  be- 
yond what  the  act  authorized,  it  is  a  public  nuisance  which  may  be 
abated  pro  tanto.57 

§  75.  S.ame  subject — Railroads.—  A  railway  company  is  bound 
to  exercise  the  power  given  to  it  in  derogation  of  individual  rights, 
with  moderation  and  discretion  and  not  negligently,  and  where  in 
executing  works  authorized  by  statute  it  does  not  take  sufficient 
and  proper  precautions  to  prevent  an  injury  to  adjoining  property, 

52.  St.  Peter  v.  Denison,  58  N.  Y.  59  N.  E.  478;  Haggart  v.  Stehlin, 
416,  17  Am.  Rep.  258.  137  Ind.  43,  35  N.  E.  997,  22  L.  R.  A. 

53.  Bohnsack  v.  McDonald,  28  577;  Koehl  v.  Schoenhausen,  47  La. 
Misc.  R.  (N.  Y.)  493,  56  N.  Y.  Supp.  Ann.  1316,  17  So.  809. 

347.  56.  Koehl  v.  Schoenhausen,  47  La. 

54.  Attorney-General  v.  Metropoli-       Ann.  1316,  17  So.  809. 

tan  Board  of  Works,   1   Hem.  &  M.  57.  Renwick  v.  Morris,  7  Hill   (N. 

298.  Y.),  575. 

55.  Kissel  v.  Lewis,  156  Ind.  233, 

116 


Legalized  and  Statutory  Nuisances. 


75 


an  injunction  will  be  granted  to  restrain  the  negligent  exercise  of 
its  powers.58  And  the  right  conferred  by  the  legislature  to  use 
locomotives  does  not  confer  upon  a  railroad  company  the  right  to 
use  locomotives  which  are  so  constructed  as  to  throw  burning  coals 
along  the  line  of  its  right  of  way  so  as  to  set  fire  to  adjoining  build- 
ings, but  such  right  is  only  granted  upon  the  condition  imposed  by 
law  upon  the  use  of  all  privileges  and  property,  that  is,  that  they 
shall  be  so  used  as  to  do  no  unnecessary  damage  to  others.59  And 
the  fact  that  the  construction  and  maintenance  by  a  railroad  of  a 
turntable  is  authorized  by  law,  confers  no  right  upon  the  company 
to  use  the  table  in  such  a  manner  as  will  render  the  same  a.  nuis- 
ance to  one  who  owns  adjoining  premises.60  And  a  railroad  com- 
pany is  liable  for  a  nuisance  where  the  running  of  its  trains  on 
the  Sabbath  is  accompanied  with  such  a  ringing  of  bells,  blowing 
off  of  steam  and  other  noises  in  the  neighborhood  of  a  church  dur- 
ing public  worship  as  to  so  annoy  and  molest  the  congregation 
worshipping  there  as  greatly  to  depreciate  the  value  of  the  building 
and  render  the  same  unfit  for  a  place  of  religious  worship.61    And 


58.  Biscoe  v.  Great  Eastern  Ry. 
Co.,  L.  R.  16  Eq.  Cas.  636.  See  Penn- 
sylvania R.  Co.  v.  Angel,  41  N.  J. 
Eq.  316,  7  Atl.  432,  56  Am.  Rep.  1. 

Land  acquired  in  a  city  for 
terminal  purposes  for  a  railroad 
company  must  be  used  with  due  re- 
gard to  the  comfort  and  property 
rights  of  others  and  so  as  to  cause  the 
least  annoyance  possible.  Ridge  v. 
Pennsylvania  R.  Co.,  58  N.  J.  Eq.  172, 
43  Atl.  275. 

The  maintenance  of  a  station- 
ary engine  on  land  owned  by  a 
street  railway  which  so  interferes 
with  the  enjoyment  of  adjoining 
premises  as  to  create  a  nuisance  is 
not  authorized  by  a  license  from  the 
municipal  authorities  to  maintain 
and  operate  a  line  of  cable  cars  upon 
the  streets  of  a  city.  Tuebner  v.  Cali- 
fornia Street  Ry.  Co.,  66  Cal.  171,  4 
Pac.  1162. 


Annoyance  caused  by  a  coal 
chute  used  to  supply  engines  with 
fuel  and  constructed  within  the  rail- 
road right  of  way  is  not  the  subject 
of  damages  to  one  residing  on  prop- 
erty ninety-three  feet  distant  from 
the  right  of  way  and  not  abutting 
thereon  where  the  chute  is  properly 
built  and  maintained,  as  a  railroad 
cannot  be  operated  without  fuel  and 
proper  structures  to  supply  the  same 
are  necessary  at  convenient  points. 
Dunsmore  v.  Central  Iowa  Ry.  Co., 
72  Iowa,  182,  33  N.  W.  456. 

59.  King  v.  Morris  &  Essex  R.  R. 
Co.,  18  N.  J.  Eq.  397.  See  Jackson 
v.  Chicago  &  N.  W.  R.  R.  Co.,  31 
Iowa,  176,  7  Am.  R.  120;  Bedell  v. 
Long  Island  R.  R.  Co.,  44  N.  Y.  367. 

60.  Garvey  v.  Long  Island  R.  Co., 
9  App.  Div.  (N.  Y.)  254,  41  N.  Y. 
Supp.  397. 

61.  First  Baptist  Church  v.  Schen- 


117 


§76 


Legalized  and  Statutoby  Nuisances. 


where  a  railroad  company  "has  been  authorized  by  its  charter  and 
the  general  statute  to  alter  a  highway  in  the  construction  of  its 
road,  but  only  upon  condition  that  it  is  restored  to  its  former  state 
or  put  in  as  good  repair  as  at  the  time  of  altering  it,  and  the  com- 
pany alters  the  highway  but  fails  to  comply  with  the  conditions, 
it  will  be  liable  as  for  a  nuisance.62  In  this  connection  it  has 
been  said :  "  The  entry  of  a  company  to  build  its  railroad  being 
lawful,  it  stands  as  if  it  were  on  its  own  ground,  and  the  maxim 
applies,  sic  utere  two  id  alienum  non  laedas. .  It  should  so  perform 
it's  act  as  not  to  carry  over  its  injurious  consequences  beyond  the 
hurt  it  may  lawfully  inflict."63 

§  76.  Where  statute  permissive — Locality  not  designated. — 
Where  a  person  is  given  authority  by  a  permissive  statute  to  carry 
on  a  certain  trade,  business,  or  occupation  or  to  erect  a  structure 


ectady  &  Troy  R.  R.  Co.,  5  Barb.  (N. 
Y.)   79.     In  this  case  it  was  said  by 
the   court:      "The   evidence    is    suffi- 
cient to   show,  that  by  the  disturb- 
ances   of    which    the    plaintiffs    com- 
plain,  the  usefulness  of  their   house, 
for  the  purposes  to  which  it  had  been 
appropriated,    is    at    least    impaired. 
This  is  not  seriously  controverted  by 
the  defendants,  but  they   insist  that 
they  have  done  no  more  than  by  their 
charter   they  were  authorized   to   do, 
and   that   therefore,   if   the   plaintiffs 
have  sustained  damage  by  their  acts, 
it   is   damnum   obseque   injuria.        If 
this  position  is  true  in  point  of  fact, 
it  is  an  answer  to  the  action.     If  the 
defendants     have    only    pursued    the 
path  prescribed  for  them  by  the  laws 
from   which    they  derive   their   exist- 
ence, they  have  committed  no  wrong- 
ful act.     .     .     .     But  I  find  nothing 
in  the  statutes  which  give  the  defend- 
ants existence  and  prescribe  their  cor- 
porate powers,  which  can  be  construed 
to  justify  them  in  creating  the  nui- 
sances of  which   the   plaintiffs   com- 


plain. They  are  indeed  authorized 
to  make  their  railroad,  and  to  acquire 
the  land  necessary  for  that  purpose. 
They  are  also  authorized  to  use  their 
road  for  the  transportation  of  pas- 
sengers and  freight.  But  in  the  ex- 
ercise of  this  authority  they  are  not 
to  be  exempt  from  liability  for  inju- 
ries to  others,  to  the  same  extent  as 
if  the  railroad  had  been  constructed 
and  used  by  individuals  owning  the 
land  without  legislative  sanction.  If, 
either  in  the  construction  or  use  of 
the  road,  they  commit  an  act  for 
which  an  individual,  under  the  same 
circumstances,  would  be  liable,  they 
too  must  be  held  answerable  for  the 
consequences.  Every     corporation 

takes  its  powers  subject  to  this  im- 
plied restriction.  Any  other  doctrine 
would  lead  to  unimaginable  mis- 
chiefs."    Per  Harris,  P.  J. 

62.  Hampden  v.  New  Haven  & 
Northampton  Co.,  27  Conn.   158. 

63.  Pittsburgh,  Fort  Wayne  & 
Chic.  Ry.  v.  Gilleland,  56  Pa.  St.  445, 
450,  94  Am.  Dec.  97,  per  Agnew,  J. 


118 


Legalized  and  Statutory  Nuisances.  §  76 

and  the  locality  is  not  designated,  the  person  is  not  thereby  author- 
ized to  carry  on  such  trade,  business,  or  occupation,  or  to  erect  such 
structure  at  any  place  he  may  think  proper,  but  must  act  with 
proper  regard  for  the  rights  of  others.  If  he  does  not  and  by  his 
act  a  nuisance  is  created,  the  statute  will  not  operate  to  exempt 
him  from  liability.64  So,  where  a  railroad  company  is  authorized 
by  its  charter  to  acquire  property  at  such  places  as  it  shall  deem 
expedient  for  the  purpose  of  constructing  railroad  terminal  facili- 
ties, it  thereby  acquires  no  right  to  construct  a  round  house 
wherever  it  may  think  proper  without  regard  to  the  rights  of  others 
or  a  license  to  commit  a  nuisance  in  any  place  it  may  select,60  and 
in  a  case  in  the  United  States  Supreme  Court  it  was  said :  "  The 
authority  of  a  company  to  construct  such  works  as  it  might  deem 
necessary  and  expedient  for  the  completion  and  maintenance  of  its 
road  did  not  authorize  it  to  place  them  wherever  it  might  think 
proper  in  the  city  without  reference  to  the  property  and  rights  of 
others."66  And  in  a  case  in  England  it  has  been  decided  that  where 
an  act  is  done  under  a  statute,  the  terms  of  which  are  not  impera- 
tive but  permissive,  and  it  is  not  manifest  that  there  was1  any  inten- 
tion on  the  part  of  the  legislature  that  any  of  the  optional  powers 
should  be  exercised  at  the  expense  of,  or  so  as  to  interfere  with 
any  man's  rights,  the  inference  arises  that  such  powers  are  to  be 
exercised  in  strict  conformity  with  private  rights.67  So,  where 
a  railway  company  was  empowered  by  its  act  to  carry  cattle  and 

64.  Baltimore  &  Potomac  R.  R.  Co.  Coal  sheds  may  by  reason  of  their 
v.  Fifth  Baptist  Church,  108  U.  S.  location  in  a  residential  locality  be  a 
317;  Beseman  v.  Pennsylvania  R.  R.  nuisance.  Wylie  v.  Elwood,  134  111. 
Co.,  50  N.  J.  L.  235,  13  Atl.  164;  281,  25  N.  E.  570,  9  L.  R.  A.  726,  23 
Cogswell  v.  New  York,  N.  H.  &  H.  R.  Am.  St.  R.  673,  affirming  34  111.  App. 
Co.,  103  N.  Y.  10,  8  N.  E.  537,  57  244;  Spring  v.  Delaware,  Lacka- 
Am.  Rep.  701;  Louisville  &  N.  T.  Co.  wanna  &  W.  R.  Co.,  88  Hun  (N.  Y.), 
v.  Jacobs,   109   Tenn.   727,   72    S.   W.  385,  34  N.  Y.  Suppl.  810. 

954,  61  L.  R.  A.  188;  Davie  v.  Mont-  66.  Baltimore  &    Potomac     R.     R. 

real   Water  &  Power   Co.,  Rap.  Jud.  Co.  v.  Fifth  Baptist  Church,   108   U. 

Queb.    23     Can.    S.     141.        Compare  S.  317,  331,  per  Mr.  Justice  Field. 

Georgia   R.   &    Bkg.    Co.    v.   Maddox,  67.  Managers     of     the     Metropoli- 

116  Ga.  64,  42  S.  E.  315.  tan  Asylum  Dist.  v.  Hill,  6  App.  Cas. 

65.  Louisville  &  N.  T.  Co.  v.  Ja-  193. 
cobs,   109  Tenn.  727,  72     S.  W.  954, 

61  L.  R.  A.  188. 

119 


§  76  Legalized  and  Statutory  Nuisances. 

to  purchase  land  for  additional  station  yards  for  cattle  and  for 
other  purposes  it  was  decided,  the  company  having  purchased  land 
and  used  it  for  unloading  cattle,  that,  as  there  was  no  obligation 
on  the  company  to  carry  cattle  or  to  have  a  station  for  them,  and  as 
it  was  not  shown  that  the  place  where  the  station  was  located,  was 
the  only  available  place  for  such  a  station,  the  yards  constituted  a 
nuisance  which  the  company  had  no  power  to  create  and  an  in- 
junction should  be  granted.68  And  where  the  location  of  a  water- 
works plant  was  not  fixed  by  the  charter  but  was  optional  with 
the  company,  the  fact  that  its  charter  authorized  it  "  to  carry  on 
the  business  of  supplying  water  and  to  use  steam  and  electricity  for 
such  purpose  "  did  not  exempt  it  from  liability  to  the  owners  of 
adjoining  property  for  a  nuisance  caused  by  smoke,  noise  and  in- 
halations resulting  from  the  operation  of  the  plant.69  And  a 
statute  giving  to  a  city  discretion  as  to  the  selection  of  lands  for  the 
construction  of  a  sewer  confers  no  authority  on  the  city  to  create 
an  unnecessary  nuisance.70  So,  legislative  authority  to  carry  on 
the  work  of  a  brick  kiln  will  not  be  a  valid  defense  to  a  public 
prosecution  or  to  a  private  action  for  a  nuisance  created  in  carry- 
ing it  on.71  And  the  fact  that  a  corporation  is  organized  under  leg- 
islative authority  for  the  purpose  of  manufacturing  gas  does  not 
relieve  it  from  liability  for  a  nuisance  caused  by  the  operation  of 
its  plant  where  the  location  of  such  plant  was  not  prescribed  by  the 
legislature.72  This  question  as  to  how  far  legislative  authority  pro- 
tected a  gas  company  where  the  erection  of  the  works  at  the  par- 
ticular place  was  not  specially  authorized  by  statute  is  considered 
in  an  English  decision.  In  this  case  the  company  was  incor- 
porated under  an  act  of  parliament  subject  to  the  English  Gas- 
works Clauses  Act  of  1871,  §  9,  which  provided  that  "  nothing  in 

68.  Truman    v.    London,    Brighton  100,    28    X.    E.    9.      As   to    sewers   a 
&  S.  C.  Ry.  Co.,  L.  R.  25  Ch.  Div.  423.  nuisance,   see   Chap.   XIII,  herein. 

69.  Davis  v.  Montreal  Water  &  71.  State  v.  Board  of  Health,  16 
Power  Co.,  Rap.  Jud.  Queb.  23  Can.  Mo.  App.  8.  As  to  brick  kilns  a  nui- 
S.  141.  See  Foot  v.  Burlington  sance  see  §§  111,  145,  herein. 
Water  Co.,  94  Iowa,  89,  62  N.  W.  72.  Bohan  v.  Port  Jervis  Gas 
648.  As  to  smoke  a  nuisance  see  §§  Light  Co.,  45  Hun  (X.  Y. ),  257,  10 
135-156,  herein.  As  to  noise  a  nui-  N.  Y.  St.  R.  374,  aff'd  122  N.  Y.  18, 
sance  see  §§  174-191,  herein.  33   X.  Y.   St.  R.  246,  25  N.  E.  246, 

70.  Bacon    v.    Boston,    154    Mass.  9  L.  R.  A.  711. 

120 


Legalized  and  Statutory  Nuisances.        §§  77,  78 

this  or  the  special  act  shall  exonerate  the  undertakers  from  any  in- 
dictment, action  or  other  proceeding  for  nuisance  being  caused  by 
them."  It  appeared  that  there  was  an  obstruction  of  light  by  the 
erection  of  the  plant  and  that  in  excavating  for  the  gas  meter  the 
defendant  reached  down  to  and  cut  through  a  stratum  of  silt  which 
supported  plaintiff's  houses  with  the  result  that  the  land  under 
such  houses  subsided  and  the  subsidence  caused  damage.  It  was 
decided  that  the  particular  location  not  being  specially  authorized 
by  statute,  the  defendant  was  liable  for  the  nuisance  caused  by  its 
works  and  could  not  avoid  liability  on  the  grounds  of  statutory 
authorization  or  that  it  was  required  by  law  under  penalty  to  fur- 
nish gas  within  the  district  within  which  its  meter  was  located.73 

§  77.  Mere  recognition  by  statute  of  a  business  or  occupation. 
— The  fact  that  a  statute  recognizes  the  existence  of  a  certain  occu- 
pation and  makes  certain  regulations  in  respect  to  its  conduct,  does 
not  amount  to  affirmative  action  authorizing  such  occupation  and 
therefore  render  it  lawful  where  it  becomes  a  public  nuisance. 
Mere  failure  to  prohibit  the  acts  complained  of  does  not  amount  to 
affirmative  action  authorizing  them.74  So,  the  fact  that  a  statute 
prescribes  the  thickness  of  the  walls  of  a  building  which  is  used 
for  certain  designated  purposes  does  not  justify  the  use  of  a  build- 
ing for  such  purpose  at  any  place  where  a  necessary  consequence 
of  such  use  is  the  emission  of  vapors  which  constitute  a  nuisance 
at  common  law  by  their  unwholesome  and  offensive  nature.75 

§  78.  Acts  authorized  by  municipality. — An  act  which  would 
otherwise  be  a  nuisance  may  in  many  cases  be  relieved  of  its  char- 
acter as  such  where  it  has  been  authorized  by  a  municipality  in 
the  lawful  exercise  of  its  powers.  This  principle  applies  in  the 
case  of  obstructions  in  the  streets  where  the  municipality  has  been 
empowered  to  authorize  the  same.76    So,  where  the  city  which  owns 

73.  Jordeson  v.  Sutton  (C.  A.),  75.  Commonwealth  v.  Kidder,  107 
68  L.  J.  Ch.  N.  S.  457.  Mass.   188. 

74.  Woodruff  v.  North  Bloom-  76.  Chicago  Dock  &  Canal  Co.  v. 
field  Gravel  Min.  Co.,  18  Fed.  753,  Garrity,  115  111.  155,  3  N.  E.  443; 
777.  See  Wheeling  Bridge  Case,  13  Michigan  City  v.  Boeckling,  122  Ind. 
How.    (U.  S.)    566.  39,  23  N.  E.  518;  Merchants'  Union 

121 


§  78  Legalized  and  Statutory  Nuisances. 

the  fee  in  the  streets  is  vested  with  authority  by  the  legislature  to 
control  the  same,  the  construction  of  a  railroad  track  in  the  streets 
of  a.  city  in  such  a  manner  that  it  neither  obstructs  or  abridges  the 
right  of  passage  and  repassage  for  other  purposes  is  not  such  an 
exclusive  appropriation  of  the  street  as  amounts  to  a  nuisance, 
though  it  may  subject  the  inhabitants  thereof  to  detriment  and 
annoyance,  as  having  bean  authorized  by  competent  legal  author- 
ity it  will  not  be  restrained  by  a  court  of  equity.77  Where,  how- 
ever, such  an  authorization  is  given,  the  extent  of  the  right  is  lim- 
ited by  the  terms  thereof  and  if  a  person,  in  constructing  a  railway 
in  such  a  case,  exceeds  the  rights  which  have  been  granted,  he  will 
be  liable  therefor  to  one  who  sustains  special  injuries  in  conse- 
quence thereof.78  And  an  opening  in  a  sidewalk  in  a  street  will  be 
relieved  of  its  character  as  a  nuisance  upon  proof  of  municipal 
consent  thereto.79  And  one  receiving  a  license  from  the  municipal 
authorities  to  make  an  excavation  under  a  sidewalk  in  a  city  street 
will  not  be  guilty  of  maintaining  a  nuisance,  but  is  only  liable  for 
negligence  for  failure  to  exercise  due  care  for  the  safety  of  the 
public.80  So,  it  has  been  declared  that  a  municipality  may,  in  the 
exercise  of  its  power  to  make  any  us3  of  a  street  which  reasonably 
conduces  to  the  public  convenience  and  enjoyment,  authorize  the 
erection  of  a  waiting  room  in  a  street  which  is  not  subject  to  abate- 
ment as  a  nuisance  at  the  suit  of  an  abutting  owner,81  and  like- 
Barb  Wire  Co.  v.  Chicago,  B.  &  Q.  8  Barb.  (N.  Y.)  509;  Hamilton  v. 
Ry.  Co.,  70  Iowa,  105,  28  N.  W.  494;  New  York  &  Harlem  R.  R.  Co.,  9 
Hoey  v.  Gilroy,  129  N.  Y.  132,  31  NT.  Paige  Ch.  (N.  Y.)  170.  See  Haskell 
Y.  St.  R.  181,  29  N.  E.  85;  Clark  v.  Denver  Tramway  Co.,  23  Colo, 
v.    Blackmar,   47    X.    Y.    150;   Mercer       60,  46  Pac.  121. 

v.    Pittsburgh,    Fort    Wayne   &    Chic.  78.  Cain  v.  Chicago,  R.  I.  &  P.  R. 

R.  R.  Co.,  36  Pa.  St.  99;  Railroad  R.  Co.,  54  Iowa.  255,  3  N.  W.  736, 
v.  Bingham,  87  Tenn.  522,   11  S.  W.       6  X.  W.  268. 

705,  4  L.  R.  A.  622.     As  to  power  of  79.  Kuechenmeister    v.    Brown,    13 

municipality  to  authorize  obstructions  Misc.  R.  (XT.  Y. )  139,  34  N.  Y.  Supp. 
see  §§  260,  261,  herein.  180,  68  N.  Y.  230.     See,  also,  Everett 

77.  Milburn     v.     City     of     Cedar       v.  City  of  Marquette,   53  Mich.  450, 
Rapids,    12   Iowa,   246;   Lexington   &       19  X.   \Y.   140. 

Ohio  R.  R.  Co.  v.  Applegate,  8  Dana  80.  Babbage    v.    Powers,    54    Hun 

(Ky.),    289,   298,   33   Am.   Dec.    497;        (N.  Y.),  635,  7  XT.  Y.  Super.  Ct.  306, 
Chapman    v.    Albany   &    Schenectady       aff'd  130  N.  Y.  281,  29  N.  E.  132,  14 
R.    R.    Co.,    10    Barb.    (N.   Y.)    360;       L.  R.  A.  398. 
Drake   v.   Hudson    River   R.    R.    Co.,  81.  Cummins      v.      Summunduwot 

122 


Legalized  and  Statutory  Nuisances.  §  79 

wise  it  is  so  held  as  to  a  structure  in  a  street  which  is  dedicated  to 
the  use  of  the  public,82  or  an  obstruction  on  the  sidewalk,83  or  a 
booth  for  the  sale  of  newspapers  erected  on  the  sidewalk  under 
stairs  which  ascend  to  an  elevated  railway.84 

§  79.  Same  subject — Continued. —  The  erection,  so  authorized, 
of  a  pier  upon  a  city  street  can  not  be  enjoined  at  the  suit  of  an 
abutting  owner,  and  to  entitle  him  to  the  protection  of  the  consti- 
tution as  to  the  taking  of  private  property  without  compensation 
he  must  show  an  injury  peculiar  to  himself  and  different  from  that 
sustained  by  the  rest  of  the  community.85  So,  an  awning  erected 
under  the  authority  of,  and  in  compliance  with,  an  ordinance 
authorizing  its  erection  is  not  a  nuisance.86  Nor  are  water  tanks 
erected  by  a  private  individual  under  municipal  authority  for  the 
purpose  of  supplying  his  street  sprinklers,  they  being  for  a  public 
object.87  Nor  is  a  market  where  so  authorized,88  or  a  building  or 
business  where  maintained  under  authority  from  the  city  in  the 
lawful  exercise  of  the  powers  conferred  upon  it,89  So,  where 
power  is  delegated  by  the  constitution  of  the  State  to  a  city  to  regu- 
late the  slaughtering  of  animals,  it  is  held  that  it  may  authorize 
the  erection  of  slaughter  houses  and  prescribe  their  location,  and 
that  adjoining  property  owners  cannot  restrain  their  erection  as  be- 
ing a  nuisance.90  And  though  a  bawdy  house  is  a  nuisance  per  se, 
yet  where  maintained  under  a  license  from  the  city  authorities,  it 
is  not  to  be  so  regarded  though  it  may  become  a  nuisance  by  reason 

Lodge,    9    Kan.    App.     153,    58    Pac.  87.  Savage    v.     Salem,     23     Oreg. 

486-  381,    31    Pac.    832,    41    Am.    &    Eng. 

82.  San  Antonio  v.  Strumberg,  70       Corp.  Cas.  1G9. 

Tex.  366,  7  S.  W.  754.  88.  Miller    v.    Webster,    94    Iowa, 

83.  Marini  v.  Graham,  67  Cal.  162,  62  N.  W.  648.  But  see  Mc- 
130    7  Pac.  442.  Donald  v.  City  of  Newark,  42  N.  J. 

84.  People   v.  Keating,   168  N.   Y.  Eq.  136,  7  Atl.  855. 

390,  61  N.  E.  637,  revg.  62  App.  Div  89.  Murtha     v.     Lovenwell,      16G 

348'  71  N.  Y.  Supp.  97.  Mass.  391,  44  N.  E.  347,  55  Am.  St. 

85.  Gates  v.  Kansas  City.  B.  &  T.       R.  410. 

R.  Co.,  Ill  Mo.  28,  19  S.  W.  957.  90.  Darcantel   v.   People's   Slaugh- 

86.  Hoey  v.  Gilroy,  129  N.  Y.  132,  ter-House  &  R.  Co.,  44  La.  Ann.  632, 
41  N.  Y.  St.  R.  181,  29  N.  E.  85.  11  So.  239,  37  Am.  &  Eng.  Corp. 
See,    also,    Hawkins    v.    Sanders,    45  Cas.  518. 

Mich.  491,  8  N.  W.  98. 

123 


§  80  Legalized  and  Statutory  Xuisances. 

of  the  manner  in  which  it  is  conducted.91  And  the  deposit  of  excre- 
ment by  horses  at  hitching  posts  lawfully  erected  under  authority 
from  the  municipality  in  the  proper  exercise  of  its  powers,  being 
a  necessary  incident  to  the  lawful  use  of  the  posts,  is  a  matter  of 
which  a  person  cannot  complain  and  no  injunction  against  the 
maintenance  of  the  posts  will  be  granted.92  So,  it  was  said  in  this 
case :  "  Where  a  municipal  corporation  is  authorized  to  do  a  par- 
ticular thing,  so  long  as  it  keaps  within  the  scope  of  the  power 
granted,  it  is  protected  from  proceedings  on  behalf  of  the  public, 
subject,  possibly,  to  this  qualification,  that  the  nuisance,  if  any, 
arises  as  the  natural  and  probable  result  of  the  act  authorized  so 
that  it  may  fairly  be  said  to  be  covered  in  legal  contemplation  by 
the  legislation  conferring  the  power.93  It  has,  however,  been  deter- 
mined that  though  a  municipality  may  have  granted  permission 
for  the  doing  of  a  certain  act,  it  does  not  thereby  lose  its  authority 
to  subsequently  forbid  the  doing  of  such  act  where  it  becomes  a 
nuisance.  Thus  it  has  been  so  held  in  the  case  of  permission  by  a 
municipality  to  run  a  steam  engine.94  It  was  said  by  U13  court  in 
this  case :  "It  is  beyond  the  power  of  a  town  council  to  contract 
away  the  authority  to  prevent  or  abate  nuisances,  and  if  they 
should  do  so,  their  acts  are  ultra  vires,  null  and  void  and  the  town 
is  not  bound  thereby,  nor  made  liable  to  damages  by  reason  of  a 
breach  of  such  void  contract,"93  So,  where  by  the  terms  of  a  con- 
tract between  a  county  and  a  city  the  former  was  permitted  to  erect 
and  perpetually  maintain,  hitching  racks  upon  land  surrounding  a 
public  square  in  the  city,  which  racks  subsequently  became  a  nuis- 
ance as  a  result  of  the  growth  and  development  of  the  city  and 
were  removed  by  the  city,  it  was  decided  that  there  could  be  no 
recovery  therefor  against  the  latter.96 

§  80.  Same  subject — Limitations  on  power  of  municipality. — 
Although  a  city  may  have  power  to  enlarge  the  general  public  uses 

91.  Givens  v.  Van  Studdiford,  86  94.  Wood  v.  City  of  Hinton,  47 
Mo.  149,  56  Am.  Rep.  421.  W.  Va.  645,  35  S.  E.  824. 

92.  Miller  v.  Webster  City,  94  95.  Wood  v.  City  of  Hinton,  47  W. 
Iowa,  162,  62  N.  W.  648.  Va.  645,  35  S.  E.  824,  per  Dent,  J. 

93.  Miller  v.  Webster  City,  94  96.  Mercer  County  v.  City  of  Har- 
Iowa,  162,  62  N.  W.  648,  per  Dee-  risburg,  24  Ky.  Law  R.  1651,  71  S. 
mer,  J.  W.  928. 

12-i 


Legalized  and  Statutory  Nuisances.  §  80 

of  a  street  it  must  exercise  it  so  that  any  use  authorized  by  it 
will  not  prove  a  nuisance  to  private  citizens,  impairing  the  health 
of  the  public  by  producing  noxious  scents  or  otherwise  rendering 
the  enjoyment  of  private  property  impossible.97  And  where  a  nuis- 
ance exists  it  is  no  justification  therefor  that  it  was  authorized  by 
a  municipal  ordinance  where  no  power  is  conferred  on  the  munici- 
pality to  legalize  such  a  nuisance.98  In  those  cases  where  it  is 
claimed  that  a  nuisance  is  so  legalized,  the  general  rule  applies 
that:  "  The  authority  which  will  shelter  an  actual  nuisance  must 
be  express  or  a  clear  and  unquestionable  implication  from  powers 
conferred,  certain  and  unambiguous,  and  such  as  to  show  that  the 
legislature  must  have  intended  and  contemplated  the  doing  of  the 
very  act  in  question."99  So,  a  municipality  cannot  authorize  obstruc- 
tions in  its  streets  which  would  constitute  a  nuisance  in  the  absence 
of  lawful  authority  unless  such  power  is  conferred  upon  it  either 
expressly  or  clearly  arises  by  implication.100  And  a  permission  in 
the  charter  of  a  municipality  to  do  a  certain  act,  which  is  not  a 
direction,  gives  no  right  to  appropriate  property  without  compen- 
sation or  to  create  a  nuisance.  It  merely  confers  a  right  which 
must  be  exercised  in  conformity  with  private  rights.  And  the 
legislature  can  not  authorize  the  doing  of  an  act  by  a  municipal- 
ity which  would  amount  to  a  taking  of  private  property  without 
compensation.101  So,  power  conferred  upon  a  municipality  to  es- 
tablish a  drainage  system  does  not  authorize  it  to  establish  a  system 
which  will  constitute  a  nuisance.102     And  the  fact  that  a  munici- 

97.  Smith  v.  Atlanta,  75  Ga.  110;  Y.  495,  34  N.  E.  1090,  54  N.  Y.  St. 
Branahan  v.  Cincinnati  Hotel  Co.,  39       R.   797. 

Ohio  St.  333,  48  Am.  Rep.  457.  100.  Grand    Rapids    E.    L.    &    R 

98.  State  v.  Luce,  9  Houst.  (Del.)  Co.  v.  Grand  Rapids  E.  E.  L.  &  F.  G. 
396;  Mann  v.  Willey,  51  App.  Div.  Co.,  33  Fed.  659;  Denver  &  S.  F.  Ry. 
169,  64  N.  Y.  Supp.  589,  aff'd  in  168  Co.  v.  Domke,  11  Colo.  247,  17  Pac. 
N.  Y.  664,  61  N.  E.  1131;  Morton  v.  777;  Mikesell  v.  Durkee,  34  Kan. 
Mayor  of  New  York,  140  N.  Y.  207,  509,  9  Pac.  278;  Glaessner  v.  An- 
212,  35  N.  E.  490,  55  N.  Y.  St.  R.  heuser  Busch  Brew.  Co.,  100  Mo.  508, 
413,  22  L.  R.  A.  241;  Miller  v.  13  S.  W.  707;  Attorney-General  v. 
Burch,  32  Tex.  208,  5  Am.  Rep.  242.  Holtz,  18  N.  J.  Eq.  410. 

99.  Morton  v.  Mayor  of  New  York,  101.  Sammons  v.  City  of  Glovers 
140  N.  Y.  207,  212,  35  N.  E.  490,  ville,  175  N.  Y.  346,  67  N.  E.  622, 
55  N.  Y.  St.  R.  413,  22  L.  R.  A.  241;  aff'g  74  N.  Y.  Supp.  1145. 

Hill  v.  Mayor  of  New  York,  139  N.  102.  Smith    v.    Atlanta,    75     Ga. 

110. 
125 


§81  Legalized  and  Statutory  Nuisances. 

pality  is  authorized  to  condemn  land  for  public  purposes  confers 
no  power  upon  it,  the  right  of  condemnation  not  having  been  exer- 
cised, to  flood  the  land  of  a  private  citizen,  for  the  purpose  of  its 
reservoir  system  and  thus  create  a  nuisance.103  And  the  right  of  an 
abutting  owner  of  access  from  his  property  to  the  street  for  pur- 
poses of  business,  cannot  be  unlawfully  interfered  with  by  an  or- 
dinance authorizing  the  use  of  the  street  as  a  stand  for  coaches 
where,  as  a  result  of  that  use,  such  access  is  impossible.104  So, 
though  the  right  to  construct  and  maintain  a  sewage  system  is  con- 
ferred upon  a  city  by  its  charter,  the  authority  must  be  exercised  in 
conformity  with  private  rights  and  the  system  cannot  be  so  con- 
structed as  to  render  it  a  nuisance.105  It  has,  however,  been  deter- 
mined that  where  a  municipality  is  authorized  to  construct  a  system 
of  sewers  which  are  to  be  discharged  into  a  certain  river,  it  cannot 
be  charged  with  the  maintenance  of  a  public  nuisanca106  In  this 
case  it  was  said  by  the  court :  "  if  the  power  inherent  in  the  legisla- 
ture to  bestow  such  authority  upon  the  city,  it  is  the  settled  law 
of  this  State  that  the  municipal  corporation  is  not  responsible  for 
those  incidental  damages  that  result  from  the  proper  exercise  of 
its  functions,  and  such  exercise  will  not  subject  it  to  charge  of 
maintaining  a  public  nuisance."107 

§  81.  Statutory  nuisances  in  general.— Each  citizen  holds  his 
property  under  the  implied  liability  that  its  use  may  be  so  regu- 
j  lated  that  it  shall  not  be  injurious  to  the  equal  right  of  enjoyment 
|  by  others  of  their  property  or  to  the  rights  of  the  community.108 
The  legislature  may,  in  the  exercise  of  the  general  power  possessed 
9  by  it,  and  within  constitutional  limits,  declare  certain  acts  or 
;    places,  or  the  carrying  on  of  a  trade  or  business  under  particular 

103.  City  of  Ennis  v.  Gilder,  32  ville.  175  N.  Y.  346,  67  N.  E.  622, 
Tex.  Civ.  App.  351,  74  S.  W.  585.  aff'd  74  N.  Y.  Supp.  1145. 

104.  Branahan  v.  Cincinnati  Ho-  106.  Gray  (Simmons  v.  City  of 
tel  Co.,  39  Ohio  St.  333,  48  Am.  Rep.  Paterson,  GO  N.  J.  Eq.  385,  45  Atl. 
457.  See  McCaffrey  v.  Smith,  41  995,  48  L.  R.  A.  717.  See  Chap. 
Hun    (N.    Y.),    117.     Compare   Mas-  XIII,  herein. 

terson  v.  Short,  30  N.  Y.  Super.  Ct.  107.  Per  Van  Syckel,  J. 

241.  108.  Moses    v.    United    States,    16 

105.  Sammons  v.  City  of  Glovers-       App.  D.  C.  428,  434,  50  L.  R.  A.  532, 

per  Mr.  Justice  Shepard. 

126 


Legalized  and  Statutory  Nuisances. 


§81 


conditions,  or  the  possession  and  use  of  certain  property  nuisances 
though  they  were  not  such  at  common  law.109  So,  in  a  case  in  New 
York  it  was  said  by  the  court:  "  The  statute  declares  and  defines 
a  new  species  of  public  nuisance,  not  known  to  the  common  law, 
nor  declared  to  be  such  by  any  prior  statute.  But  we  know  of  no 
limitation  of  legislative  power  which  precludes  the  legislature  from 
enlarging  the  category  of  public  nuisances,  or  from  declaring 
places  or  property  used  to  the  detriment  of  public  interests,  or  to 
the  injury  of  the  health,  morals  or  welfare  of  the  community,  pub- 
lic nuisance,  although  not  such  at  common  law.  There  are,  of 
course,  limitations  upon  the  exercise  of  this  power.  The  legisla- 
ture cannot  use  it  as  a  cover  for  withdrawing  property  from  the 
protection  of  the  law,  or  arbitrarily,  where  no  public  right  or  inter- 
est is  involved,  declare  property  a  nuisance  for  the  purpose  of  de- 
voting it  to  destruction.  If  the  court  can  judicially  see  that  the 
statute  is  a  mere  invasion,  or  was  framed  for  the  purpose  of  indi- 


109.  Ripley  v.  State,  4  Ind.  264; 
Train  v.  Boston  Disinfecting  Co., 
144  Mass.  523,  11  N.  E.  929,  59  Am. 
Rep.  113;  City  of  Pittsburg  v.  Keech 
Co.,  21  Pa.  Super.  Ct.  548. 

"  It  is  competent  for  the 
legislature  to  declare  the  pos- 
session of  certain  articles  of  prop- 
erty either  absolutely  or  when  held 
in  particular  places  and  under  par- 
ticular circumstances,  to  be  unlawful 
because  they  would  be  injurious,  dan- 
gerous or  noxious,  and  by  due 
process  of  law  by  proceedings  in  rem 
to  provide  both  for  the  abatement  of 
the  nuisance  and  the  punishment  of 
the  offender  by  the  seizure  and  con- 
fiscation of  the  property  by  the  re- 
moval, sale  or  destruction  of  the 
noxious  article."  Fisher  v.  McGirr, 
1  Gray  (Mass.),  1,  61  Am.  Dec.  381, 
per  Shaw,  J. 

"  In  the  exercise  of  this  power 
of  regulation,  called  the  police 
power,  there  can  be  no  doubt  that 
the  legislature  has  a  very  wide  dis- 


cretion, and  may  add  to,  or  substract 
from,  the  category  of  public  nuisance 
recognized  at  common  law, — moving 
in  either  direction,  as  exigencies  may 
suggest,  under  limitations  not  yet 
definitely  settled."  Moses  v.  United 
States,  16  App.  D.  C.  428,  434,  50  L. 
R.  A.  532,  per  Mr.  Justice  Shepard. 

A  penal  statute  which  pro- 
hibits the  carrying  on  of  a  cer- 
tain kind  of  business  should  not 
be  so  construed  as  to  attribute  to  the 
legislature  a  purpose  to  prohibit  the 
defendant  from  carrying  on  his  busi- 
ness irrespective  of  the  manner  of 
conducting  it  or  of  its  effect,  injuri- 
ous or  otherwise,  upon  the  commu- 
nity. It  will  be  assumed  that  it  was 
intended  by  the  legislature,  within 
its  police  powers,  to  suppress  nui- 
sances and  to  punish  persons  carry- 
ing on  such  business  in  such  a  way 
as  to  become  such.  People  v.  Rosen- 
berg, 138  N.  Y.  410,  416,  53  N.  Y. 
St.  R.  1,  34  N.  E.  785,  case  reverses 
67  Hun,  52,  22  N.  Y.  Supp.  56. 


127 


§  82  Legalized  and  Statutory  Nuisances. 

vidual  oppression,  it  will  set  it  aside  as  unconstitutional  but  not 
otherwise."110  And  that  which  is  declared  by  a  valid  statute  to  be 
a  nuisance  is  to  be  regarded  in  law  as  a  nuisance  in  fact  and  to 
be  dealt  with  as  such.111  And  it  has  bsen  decided  that  where  any- 
thing is  declared  by  the  legislature  by  a  valid  act  to  ba  a  nuisance, 
it  is  not  competent  for  a  party  to  show  that  it  is  not  in  fact  one.112 

§  82.  Constitutionality  of  such  acts. —  Subject  to  the  constitu- 
tional rights  conferred  upon  the  individual  in  respect  to  the  use  and 
enjoyment  of  his  property  and  the  limitation  upon  the  legislature 
\  that  it  cannot  act  arbitrarily  where  no  public  right  or  interest!  is 
involved,113  it  may  be  stated  generally  that  such  an  act  is  not  un- 
constitutional merely  because  it  does  not  provide  for  compensa- 
tion.114 The  destruction  in  the  exercise  of  the  police  power  of  the 
State  of  property  used  in  violation  of  law,  in  maintaining  a  pub- 
lic nuisance  is  not  a  taking  of  property  for  public  use  and  does  not 
deprive  the  owner  of  it  without  due  process  of  law.u5  So,  a 
statute  which  provides  that  the  court  shall,  where  property  either 
from  its  character  or  use,  is  shown  to  constitute  a  nuisance,  abate 
the  same  by  the  destruction  and  sale  of  the  property  does  not  vio- 
late the  rule  that  property  of  individuals  cannot  be  forfeited  by 
legislative  enactment  and  that  such  forfeiture  can  only  be  by  the 
judgment  of  a  court  of  competent  jurisdiction  in  a  proper  case 
after  due  notice.11'  Nor  is  such  a  constitutional  provision  violated 
by  a  statute  which  requires  railroad  companies  to  construct  and 
maintain  ditches  by  the  sides  of  the  roadbeds  sufficient  in  depth  for 

11.0.  Lawton  v.  Steele,  119  N.  Y.  113.  Lawton  v.  Steele,   119  N.  Y. 

226,  23  N.  E.  878,  29  N.  Y.  St.  R.  81,  226,  23  N.  E.  878,  29  N.  Y.  St.  R.  81. 

7  L.  R.  A.   134,  16  Am.  St.  R.  813,  7  L.  R.  A.  134,  16  Am.  St.  R.  813. 

per  Andrews,  J.     See,  also,  Mugler  v.  11.4.  Train  v.   Boston  Disinfecting 

State  of   Kansas,   123  U.   S.  623,  31  Co.,  144  Mass.  523,  11  N.  E.  929,  59 

L.  Ed.  205;  Fisher  v.  McGirr,  1  Gray  Am.  Rep.  113. 

(Mass.),l;  In  re  Jacobs,  98  N.  Y.  98.  115.  Mugler    v.    State   of   Kansas, 

111.  Carleton  v.  Rugg,  149  Mass.  123  U.  S.  623,  31  L.  Ed.  205;  Board 

550,  22  N.  E.  55,  5  L.  R.  A.  193.  of   Police  Commissioners  v.   Wagner, 

11.2.  Train  v.  Boston  Disinfecting  93  Md.  182,  48  Atl.  455,  86  Am.  St. 

Co.,  144  Mass.  523,  11  N.  E.  929,  59  R.  423,  52  L.  R.  A.  775. 

Am.  Rep.  113.     Compare  Harrington  116.  Craig     v.     Werthmuller,     78 

v.  Board  of  Aldermen,  20  R.  I.  233,  38  Iowa,  598,  43  N.  W.  606. 
Atl.  1,  38  L.  R.  A.  305. 

128 


"Legalized  ant>  Statutory  Nuisances. 


83 


drainage  of  waters  which  may  accumulate  as  a  result  of  the  con- 
struction of  the  road  and  which  provides  for  the  summary  abate- 
ment of  the  nuisance  on  failure  to  construct  such  drains  after 
proper  notice.117  And  it.  has  been  decided  that  an  act  declaring  the 
use  of  a  building  for  either  of  several  purposes  to  be  a  nuisance 
abatable  in  equity,  does  not  introduce  an  exceptional  mode  of  trial, 
or  change  the  ordinary  course  of  procedure  on  questions  properly 
triable  by  jury.118  The  legislature  cannot,  however,  declare  an  act 
a  nuisance  where  it  amounts  to  a  taking  of  private  property  with- 
out just  compensation  or  due  process  of  law.  An  act  cannot  be 
made  a  nuisance  where  by  so  doing  it  is  a  violation  of  the  constitu- 
tional rights  of  the  one  doing  it.119  "  If  the  thing  declared  by  stat- 
ute to  be  a  nuisance  or  the  thing  regulated  or  repressed  under  an 
exercise  of  the  police  power,  is  not  a  nuisance  in  fact,  or  within 
the  province  of  the  exercise  of  the  police  power,  then  the  court  will 
declare  the  statute  unconstitutional,  for  the  power  is  not  to  be 
used  under  the  mere  allegation,  color  or  pretence  of  being  a  proper 
exercise  of  the  police  power  when  in  truth  it  is  not.  But  the  legTs^ 
lature  .  .  .  is  to  a  great  extent  the  proper  judge  of  the  neces- 
sity for  the  exercise  of  this  restraining  power."120 

§  83.  Power  of  Legislature  to  declare  nuisances  illustrated.— 

The  legislature  may  declare  that  nets  set  in  certain  waters  are  nuis- 
ances and  may  provide  for  their  summary  destruction.121  And  a 
statute  declaring  bowling  alleys  nuisances  when  situated  within  a 
certain  distance  of  dwelling  houses  is  constitutional.122  And  an 
act  of  Congress  declaring  that  the  emission  of  dense  black  or  gray 
smoke  from  any  smoke  stack  or  chimney  used  in  connection  with 
any  stationary  engine  in  the  District  of  Columbia  constitutes  a  pub- 

11.7.  Chicago  &  E.  R.  R.  Co.  v.  dermen,  20  R.  I.  233,  248  38  Atl  1 
Keith,   21    Ohio   Cir.   Ct.    R.    669,    12       38  L.  R.  A.  305,  per  Rogers   J 

Ohio  C.  D.  208.  121.  Lawton  v    stee°]e5  'n9   N    Y 

11.8.  State,  Rhodes  v.  Saunders,  226,  23  N.  E.  878  29  N  Y  St  R 
66  N.  H.  39,  25  Atl.  588,  18  L.  R.  A.  581,  16  Am.  St.  R.  813,  7  L.  R.  A. 
646'  134,  aff'd  in  152  U.  S.  183,  38  L.  Ed. 

11.9.  City  of  Janesville  v.  Carpen-  385,  14  Sup.  Ct.  499. 

ter,  77  Wis.  288,  8  L.  R.  A.  808.  122.  State  v.  Noyes,  30  N.  H   279 

120.  Harrington   v.    Board    of  Al-       As  to  bowling  alleys  a  nuisance  se* 

§  109,  herein. 

129 


§  83  Legalized  and  Statutory  Nuisances. 

lie  nuisance  has  been  held  not  to  be  a  taking  of  property  without 
due  process  of  law,  but  a  valid  exercise  by  Congress  of  its  police 
power  over  the  district.123  And  a  statute  may  provide  that  a  dam 
without  a  fishway  is  a  nuisance  which  may  be  abated  as  such,124 
or  that  a  building  which  is  used  for  the  illegal  sale  of  intoxicants 
is  a  common  nuisance  and  to  be  regarded  and  treated  as  such.123 
So,  an  ordinance  of  a  city  to  the  effect  that  all  places  where  per- 
sons are  permitted  to  resort  for  the  purpose  of  drinking  intoxicat- 
ing liquors  as  a  beverage,  are  common  nuisances  has  been  declared 
not  to  be  in  violation  of  a  constitutional  provision  that  all  men  are 
possessed  of  equal  and  inalienable  natural  rights  among  which  are 
life,  liberty  and  the  pursuit  of  happiness.120  The  legislative  author- 
ity also  extends  to  the  power  to  declare  privy  vaults  in  populous 
districts  to  be  nuisances.127  And  a  board  of  health  invested  by  the 
legislature  with  power  to  make  quarantine  regulations  necessary 
for  the  health  and  safety  of  the  public  may  require  that  rags  shall 
be  disinfected.128  But  a  legislature  possesses  no  power  to  declare 
a  private  residence  a  nuisance  because  of  the  fact  that  it  depre- 
ciates the  value  of  adjoining  property  by  obstructing  the  view  or 
intercepting  a  breeze  which  may  blow.129  Again,  where  the  law  de- 
clares that  fences  of  over  a  certain  height  shall  be  deemed  nuis- 
ances where  they  are  maliciously  erected  and  maintained  for  the 
purpose  of  annoying  the  adjoining  owners,  in  order  to  render 
fences  over  the  specified  height  a  nuisance,  malevolence  must  be 
shown.130 

123.  Bradley  v.  District  of  Colum-  127.  Harrington  v.  Board  of  Al- 
bia,  20  App.  D.  C.  Hi9;  Moses  v.  dermen,  20  R.  I.  233,  38  Atl.  1,  38  L. 
United  States,  16  App.  D.  C.  428,  50      R.  A.  305. 

L.  R.  A.  532.     As  to  smoke  a  nuisance  128.  Train  v.  Boston  Disinfecting 

-     see  §§  135-155,  herein.  Co.,  144  Mass.  523,  11  N.  E.  929,  59 

124.  State  v.  Meek,  112  Iowa,  338,       Am.  Rep.  113. 

84  N.  W.  3,  51  L.  R.  A.  414;     State  129.  Quintini  v.  City  of  Bay  St. 

v.  Beardsley,  108  Iowa,  396,  79  N.  W.  Louis,   64   Miss.    483,    1    So.   625,   60 

138.  Am.  Rep.  62. 

125.  Commonwealth  v.  Howe,  13  130.  Lord  v.  Langdon,  91  Me.  221, 
Gray  (Mass.),  26.  See  State  v.  Stan-  39  Atl.  552;  Rideout  v.  Knox,  148 
ley,  84  Me.  555,  24  Atl.  983.  Mass.  368,  19  N.  E.  390,  2  L.  R.  A. 

126.  City  of  Topeka  v.  Raynor,  61  81. 
Kan.  10,  58  Pac.  557. 


130 


Legalized  and  Statutory  Nuisances. 


§84 


§  84.  Power  of  Legislature  to  delegate  authority  to  munici- 
pality.— The  legislature  may  confer  upon  a  municipal  corporation 
the  power  to  declare  what  shall  constitute  a  nuisance,131  and  to  pro- 
vide for  the  abatement  of  the  same.132  A  right  conferred  by  stat- 
ute on  a  town  to  summarily  abate  a  nuisance,  confers  no  right  not 
possessed  at  common  law  and  is  not  exclusive  of  a  resort  to  the 
courts.133  So,  the  legislature  has  the  right  to  delegate  to  the  mayor 
and  aldermen  of  a  city  the  power  to  order  the  owner  to  fill  his 
land  and  upon  his  refusal  or  neglect  so  to  do,  to  fill  it  for  him  at 
his  expense  and  to  do  all  that  is  reasonably  necessary  to  accom- 
plish it.134  Where,  however,  the  nuisance  is  caused  by  the  negli- 
gence of  the  city  in  grading  its  streets,  the  expense  should  not  be 
charged  to  the  owner  of  the  land  but  to  the  city.135  Again,  a  muni- 
cipality may  be  authorized  by  the  legislature  to  prohibit  the  main- 
tenance of  bowling  alleys  in  certain  sections  of  the  municipality.136 


131,.  Roberts  v.  Ogle,  30  111.  459, 
83  Am.  Dec.  201 ;  State  v.  Noyes,  30 
N.  H.  279. 

132.  Roberts  v.  Ogle,  30  111.  459, 
83  Am.  Dec.  201.  But  see  Hutton  v. 
City  of  Camden,  39  N.  J.  L.  122,  23 
Am.  Rep.  203,  holding  that  the  leg- 
islature has  no  power  to  authorize  a 
board  of  health  to  summarily  abate 
a  public  nuisance  without  notice  to 
the  one  maintaining  it. 

133.  American  Furniture  Co.  v. 
Batesville,  139  Ind.  77,  38  N.  E.  408, 
so  holding  in  construing  Ind.  Rev.  St. 
1894,  §  4357,  subd.  4,  conferring  such 


power  upon  towns.  As  to  power  of 
municipality  to  summarily  abate  or 
remove  nuisances,  see  Chap  XIV, 
herein. 

134.  Bancroft  v.  City  of  Cam- 
bridge, 126  Mass.  438;  Patrick  v. 
City  of  Omaha  (Neb.),  95  N.  W.  477. 
See  Lasbury  v.  McCague,  56  Neb. 
220,  76  N.  W.  862. 

135.  Pathrick  v.  City  of  Omaha, 
(Neb.),  95  N.  W.  477. 

136.  State  v.  Noyes,  30  N.  H.  279. 
As  to  bowling  alleys  a  nuisance  see  § 
109,  herein. 


131 


CHAPTER  VII. 

Tbade  ob  Business. 

Section     85.  Trade  or  business  generally. 

86.  Evidence   upon   question   of   nuisance. 

87.  Need  not  endanger  health. 

88.  Injury   must  be   substantial. 

89.  Duty  as  to  care  and  use  of  appliances. 

90.  Where    nuisance   can    be   avoided. 

91.  Where   nuisance    obviated   after    action    commenced. 

92.  Negligence  as   an   element. 

93.  Effect  on  persons  of  ordinary  sensibility  the  test. 

94.  Intention    does    not    affect. 

95.  Effect  of  locality. — Convenient  place. 

96.  Same  subject. — Continued. 

97.  Change  in  character  of  locality. — Coming  into  nuisance. 

98.  Change  in  locality  from   residence   to  business  or   trade. 

99.  Fact  that  business  is  lawful  is  immaterial. 

100.  Development  of  natural   resources  on  one's  land. 

101.  Trade   a   nuisance   does   not   render   building   such. 

102.  Injunction   against    proposed  business. 

103.  Injunction  against  erection  of  building  for  business  or  trade. 

104.  Nuisance   maintained   in   another   town   where    it   is   not   com- 

plained of. 

105.  Statute  enjoining  malicious  erection  of  structure  construed. 

106.  Bakery. 

107.  Blacksmith   shop. 

108.  Blasting. 

109.  Bowling  alleys. 

110.  Breweries   and   distilleries. 

111.  Brick,  lime  and  lumber  kilns. 

112.  Coke  ovens. 

113.  Cotton   gin. 

114.  Electric    light   or    power    plant. 

115.  Exhibitions  and  playhouses. 

116.  Fat  and  bone   boiling   establishments. 

117.  Ferries. 

118.  Fertilizer    factories. 

119.  Foundries. 

120.  Gas  works. 

121.  Ice  house. 

13:i       ' 


Trade  or  Business.  §  85 

Section  122.  Laundry. 

123.  Merry-go-round. 

124.  Quarries. 

125.  Shooting  gallery. 

126.  Slaughter  house. — Prima  facie  a  nuisance. 

127.  Slaughter  house. — Nuisance    by   location  or   operation. 

128.  Where   slaughter   house   originally    remote    from    habitations. — 

Subsequent  development  of  locality. 

129.  Slaughter  house  a  nuisance. — Health  need  not  be  endangered. 

130.  Slaughter  house  a  nuisance. — Defense  to  indictment  for. 

131.  Slaughter  house. — Defense  to  action  to  enjoin. 

132.  Smelting  works. 

133.  Steel  furnaces. 

134.  Undertakers. 

§  85.  Trade  or  business  generally. —  What  constitutes  a  nuis- 
ance with  reference  to  the  carrying  on  of  a  trade  or  business  is  a 
question  of  fact  which  is  not  easy  to  determine.1  Many  elements 
enter  into  the  consideration  of  the  question  of  whether  a  certain 
trade,  business  or  enterprise  constitutes  a  nuisance.  It  may,  how- 
ever, be  stated  generally,  that  a  person  can  not  carry  on  a  trade 
or  business  which  causes  a  substantial  injury  to  another  either  as 
to  his  personal  or  property  rights,  in  the  absence  either  of  a  pre- 
scriptive right  or  of  some  covenant,  grant,  license  or  privilege.2 
"  Any  business,  however  lawful  in  itself,  which,  as  to  a  dwelling 
house,  near  which  it  is  carried  on,  causes  annoyances  which  mater- 
ially interfere  with  the  ordinary  physical  comfort  of  human  ex- 
istence, is  a  nuisance  which  should  be  restrained."3  If  a  trade  or 
business  so  carried  on  creates  a  nuisance  as  to  the  individual 
merely,  the  one  maintaining  it  will  be  liable  to  a  suit  therefor  by 
such  individual,4  or  if  it  creates  a  nuisance  as  to  the  public  he  will 

1.  Attorney-General  v.  Cleaver,  18  Robinson  v.  Kilbert,  58  L.  J.  Ch.  392, 
Ves.  211.  61  L.  T.  60,  41  Ch.  6,  88,  37  W.  R. 

2.  Snider  Preserve  Co.  v.  Beeman,  545;  Montreal  St.  Ry.  Co.  v.  Gareau, 
22  Ky.  Law  Rep.  1527,  60  S.  W.  849;  Rap.  Jud.  Queb.  10  B.  R.  417. 
Boston    Ferrule    Co.    v.    Hills,     159  3.  Herbert  v.  Rainey,  54  Fed.  248, 
Mass.  147,  34  N.  E.  85,  20  L.  R.  A.  251,  per  Acheson,  C.  J. 

844;      Robinson   v.   Baugh,   31    Mich.  4.  Robinson    v.    Kilbert,    58    L.    J. 

290;  Davis   v.   Niagara    Falls   Power  Ch.  392,  61  L.  T.  60,  41  Ch.  D.  88, 

Co.,  171  N.  Y.  336,  64  N.  E.  4,  57  L.  37  W.  R.  545. 
R.  A.  545,  aff'g  67  N.  Y.  Supp.  1131; 

133 


jj  85  Tbade  ok  Business. 

be  liable  to  an  indictment  for  the  same.8  And  an  injunction  re- 
straining the  carrying  on  of  a  business,  which  is  a  nuisance  per  se 
until  there  has  been  a  final  hearing,  will  be  granted  where  it  satis- 
factorily appears  that  this  is  essential  to  properly  protsct  the  rights 
of  a  complainant.6  So,  where  a  person  is  substantially  injured  by 
the  vibrations,  smoke  and  soot  from  the  carrying  on  of  a  business, 
the  proprietor  of  such  business  will  be  liable  therefor.1  And  where 
a  person  erected  a  high  tower  on  his  premises  upon  which,  in  the 
winter  time,  ice  formed  from  the  spray  of  a  large  cataract  nearby 
and,  when  a  thaw  occurred,  fell  upon  and  injured  a  building  on 
adjacent  property  and  endangered  life,  it  was  decided  thai  the 
maintenance  of  such  tower  in  such  a  manner  as  to  cause  the  injury 
complained  of  should  be  perpetually  enjoined.8  And  the  carrying 
on  of  a  business  so  that  fumes,  acid  and  sand  therefrom  pass* 
through  holes  in  the  floor  which  are  used  for  necessary  beiting  to 
run  machinery,  and  injure  the  goods  and  machinery  of  a  person 
in  business  on  the  floor  below,  constitutes  a  nuisance  which  may 
be  enjoined.9  So,  where  the  waste  from  a  canning  factory  caused 
a  nuisance  which  injured  the  business  of  an  adjoining  owner,  the 
proprietor  of  such  factory  was  held  liable  therefor.10  And  one 
establishing  an  electric  pumping  station  has  been  held  liable  for 
permanent  damages  to  property  injured  by  such  plant.11  Nor  is  it 
any  defense  to  an  action  of  this  kind  that  a  similar  objection 
might  be  made  to  a  like  establishment  maintained  by  the  plaintiff.12 
It  has,  however,  been  decided  that  the  carrying  on  of  a  trade  not 
in  itself  noxious,  does  not  become  a  nuisance  merely  because  it 
does  harm  to  some  particular  trade  of  an  exceptionally  delicate 
nature  on  adjoining  property  where  it  would  not  interfere  with  or 

5.  State     v.     Wetherell,      5     Har.  9.  Boston  Ferrule  Co.  v.  Hills,  159 
(Del.)    487.                                                        Mass.  147,  34  N.  E.  85,  20  L.  R.  A. 

6.  Smith  v.  Cummings,  2  Pars.  Eq.       844. 

Cas.  92.  10.  Snider    Preserve    Co.    v.     Bee- 

7.  Montreal  St.  Ry.  Co.  v.  Gareau,       man,  22  Ky.  Law  Eep.  1527,  60  S.  W. 
Rap.  Jud.  Queb.  10  B.  R.  417.     As  to       849. 

smoke  see  §§  135-155,  herein.     As  to  11.  Davie    v.    Montreal    Water    & 

vibrations  see  §§  188-190,  herein.  Power  Co.,   Rap.  Jud.   Que.   23  C.   S. 

8.  Davis   v.    Niagara    Falls    Power       141. 

Co.,   171   N.  Y.  336,  64  N.  E.  4,  57  12.  Robinson  v.   Baugh,   31   Mich. 

L.   R.  A.    545,  aff'g  67  N.  Y.   Supp.       290. 

1131. 

134 


Trade  ok  Business. 


86 


injure  an  ordinary  trade.13  And  where  a  town  brought  an  action 
to  restrain  the  carrying  on  of  a  manufacturing  business  in  a  cer- 
tain building  on  the  ground  that  it  constituted  a  public  nuisance, 
it  was  decided  that  the  court  would  grant  no  relief,  there  being  no 
allegation  that  any  damages  of  a  special  nature  had  been  received 
by  the  plaintiff  in  its  corporate  capacity.14  And  damages  for  a 
permanent  injury  to  land  caused  by  the  construction  and  operation 
of  a  mill,  have  been  held  not  recoverable  where  it  appears  that 
the  value  of  plaintiff's  land  has  been  increased  thereby  to  an 
amount  in  excess  of  any  injury  which  has  been  sustained.10  Again, 
the  carrying  on  of  banking  operations  contrary  to  the  statute  has 
been  held  not  to  be  such  a  mischief  or  public  nuisance  that  a  court 
of  equity  would  grant  an  injunction  to  restrain  the  same  even 
though  it  had  jurisdiction  over  public  nuisances.16 

§  86.  Evidence  upon  question  of  nuisance. —  In  an  action  by 
one  claiming  to  have  been  injured  in  his  dwelling  by  a  nuisance 
caused  by  the  operation  of  a  factory,  evidence  is  admissible  to 
show  that  other  dwellings  in  the  vicinity  have  been  likewise 
affected.17  So,  where  plaintiff  claimed  to  have  been  injured  in  his 
dwelling  by  dust  and  other  impurities  resulting  from  the  opera- 
tion of  a  mill,  he  was  permitted  to  show  that  other  dwellings  in  that 
vicinity  were  also  affected  by  impurities  from  the  mill,  such  evi- 
dence tending  to  show,  not  the  amount  of  impurities  cast  upon 
plaintiff's  property,  but  rather  that  the  mill  inflicted  the  injury 
complained  of  by  him.18  In  a  case  in  Indiana,  however,  it  is  de- 
cided that,  in  an  action  by  one  to  recover  damages  for  injury  to  his 
property  from  the  operation  of  a  grist  mill,  evidence  that  another 
person  has  lived  within  a  short  distance  of  both  the  mill  and  of 
plaintiff's  house  and  has  suffered  no  injury  therefrom,  is  not  ad- 


13.  Robinson  v.  Kilvert,  58  L.  J. 
Ch.  392,  41  Ch.  D.  88,  61  L.  T.  60,  37 
W.  R.  545.  But  see  Cooke  v.  Forbes, 
37  L.  J.  Ch.  178,  17  L.  T.  371,  L.  R. 
5  Eq.  166. 

14.  Inhabitants  of  Winthrop  v. 
New  England  Chocolate  Co.,  180 
Mass.  464,  62  N.  E.  969. 


15.  Chicago  Forge  &  Bolt  Co.  v. 
Sauche,  35  111.  App.  174. 

16.  Attorney-General  v.  Utica  Ins. 
Co.,  2  Johns.  Ch.  (N.  Y.)  371;  At- 
torney-General v.  Bank  of  Niagara,  1 
Hopk.  Ch.   (N.  Y.)   354. 

17.  Hoadley  v.  Seward  &  Son  Co., 
71  Conn.  640,  42  Atl.  997. 

1,8.  Cooper  v.  Randall,  59  111.  317. 


135 


§§  87,  88  Trade  or  Business. 

missible.19  Again,  in  an  action  by  one  to  enjoin  the  operation  of 
a  factory  on  the  ground  that  it  constitutes  a  nuisance  affecting  him 
in  the  enjoyment  of  his  home,  evidence  is  admissible  as  bearing 
upon  the  question  of  whether  the  injunction  should  be  granted, 
of  personal  injury  and  physical  suffering  sustained  by  his  family 
in  consequence  thereof.20 

§  87.  Need  not  endanger  health.—  It  is  not  necessary  in  order 
to  render  a  trade  or  business  a  nuisance  that  it  should  be  injurious 
to  health,  it  being  sufficient  if  it  causes  substantial  discomfort  or 
materially  disturbs  one  in  the  ordinary  comforts  of  life.21  So,  one 
carrying  on  a  trade  or  business  which  produces  noxious  smells 
affecting  the  general  public,  may  be  indicted  for  maintaining  a 
common  nuisance  though  the  smells  are  not  injurious  to  health.22 

§  88.  Injury  must  be  substantial. — Every  trifling  annoyance 
which  a  person  may  sustain  as  the  result  of  the  carrying  on  of  a 
trade  or  business  does  not  constitute  a  nuisance.  The  injury  must 
be  real,  not  imaginary.  To  constitute  a  nuisance,  in  this  class  of 
cases,  there  must  be  a  substantial  interference  with  the  ordinary 
comfort  and  enjoyment  of  life,  or  with  the  use  of  property,  or 
some  injury  to  property.23     So,  in  an  action  for  injury  from  the 

19.  Hindson  v.  Densmore,  68  Ind.  Y.)  281;  Catlin  v.  Valentine,  9 
391.  Paige  (N.  Y.),  575,  38  Am.  Dec.  567; 

20.  Hoadley  v.  Seward  &  Son  Co.,  Brady  v.  Weeks,  3  Barb.  (N.  Y.)  157. 
71  Conn.  640,  42  Atl.  997,  holding  See  §§  85,  93,  129,  138,  163,  166 
that  such  evidence  is  admissible  "not  183,  herein. 

to    show    that    other    persons    might  herein. 

have   a   cause   of  action  against  the  22.  State    v.     Wetherell,     5     Har. 

defendant,  but  to  show  that  the  oper-  (Del.)    487. 

ations  of  the  defendant's  factory  ere-  23.  Cooper  v.  Randall,  59  111.  317; 

ated  a   nuisance.        If   other   persons  Owen  v.   Phillips,   73   Ind.   284;   Sus- 

than  the  plaintiff,  situated  in  respect  quehanna  Fertilizer  Co.  v.  Malone,  73 

to    the    defendant's    factory    substan-  Md.  2G8,  20  Atl.  900,  9  L.  R.  A.  737; 

tially   as  he   was,  suffered   therefrom  Butterneld   v.  Klaber,  52  How.  Prac. 

the  same  kind  of  hurt,  inconvenience  (N.    Y.)    255;   Farrell    v.   New   York 

and  damage  that  he  did,  then  the  ex-  Steam  Co.,  23  Misc.  R.    (N.  Y.)    726, 

perience   of  the   others  tended  to  es-  53  N.  Y.   Supp.  55;  Goodall  v.  Crof- 

tablish    the   claim    of    the    plaintiff."  ton,   33    Ohio   St.   271,   31   Am.    Rep. 

Per  Andrews,  C.  J.  535;  Tiede  v.  Schmeidt,  105  Wis.  470, 

21.  Howard  v.  Lee,  3  Sandf.    (N.  81   N.  W.  826;  Robinson  v.  Kilvert, 

68  L.  J.  Ch.  392,  61  L.  T.  60,  41  Ch. 

136 


Trade  or  Business.  §  89 

operation  of  a  flour  mill  it  has  been  decided  that  the  plaintiff 
must  show  either  a  substantial  injury  to  himself  or  to  his  prop- 
erty. There  must  be  a  wrongful  invasion  of  a  legal  right  and  the 
damage  therefrom  must  be  serious  and  substantial.24  So,  an  in- 
struction that  the  law  does  not  give  damages  for  every  trifling 
injury  is  proper.25  Where  an  injunction  is  asked  for,  if  there  is 
any  doubt  as  to  the  complainant's  right  thereto,  and  the  industry  is 
a  lawful  one  and  of  public  utility,  it  will  not  be  granted.26 

§  89.  Duty  as  to  care  and  use  of  appliances. —  Carrying  on  a 
lawful  trade  in  the  usual  manner  is  not  necessarily  the  carrying 
it  on  in  a  reasonable  and  proper  manner.27  A  person  carrying  on 
a  trade  or  business  should  exercise  a  due  regard  for  the  rights  of 
others  and  is  under  the  obligation  to  use  ordinary  care  so  as  to 
avoid  unnecessary  annoyance.28  Machinery  should  be  used  in  a 
reasonable  and  ordinary  manner  and  an  excessive  or  unreasonable 
use  thereof  which  causes  inconvenience,  annoyance  or  injury  to 
another  may  be  restrained,29  or  the  ground  of  an  action  for  dam- 
ages.30 If  by  the  use  of  customary  precautions  and  of  approved 
appliances  he  can  avoid  injury  to  another,  it  is  his  duty  to  make 
use  of  such  precautions  and  appliances.31  A  person  is  not,  however, 
relieved  from  liability  for  a  nuisance  created  by  him  in  such  cases 
by  the  fact  that  the  business  is  so  conducted  as  to  create  the  least 
possible  annoyance.32     If  one  uses  his  own  land  for  the  prosecu- 

D.  88,  37  W.  R.  545.     See  §§  137,  162,  lum.   Co.,  29  Misc.  R.    (X.  Y.)    171, 

182,  herein.  60  N.  Y.  Supp.  835. 

24.  Owen  v.  Phillips,  73  Ind.  284.  30.  Piehl  v.  Albany  R.  Co.,  30  App. 

25.  Cooper  v.  Randall,  59  111.  317.  Div.    (X.   Y.)    166,   51    X.   Y.   Supp. 

26.  English    v.    Progress    Electric  755. 

Light  &  M.  Co.,  95  Ala.  259,  10  So.  31.  Hill     v.     Schneider,     13     App. 

134.       See  Butterfield  v.  Klaber,  52  Div.   (X.  Y.)  299,  43  X.  Y.  Supp.  1. 

How.  Prac.   (X.  Y.)   255.  32.  Winslow  v.  City  of  Blooming- 

27.  Stockport  Waterworks  Co.  v.  ton,  24  111.  App.  647 ;  Moses  v.  State, 
Potter,  31  L.  J.  Ex.  9,  7  H.  &  X.  160,  58  Ind.  185;  McAndrews  v.  Collerd, 
7  Jur.  X.  S.  880.  42   X.   J.   L.    189,   192,   36  Am.  Rep. 

28.  Over  v.  Dehne  (Ind.  App.  508;  People  v.  Burtleson,  14  Utah, 
1905),  75  X.  E.  664;  Owen  v.  Phil-  258,  263,  47  Pac.  87;  Pennoyer  v.  Al- 
lips,  73  Ind.  284.  See  Seacord  v.  len,  56  Wis.  502,  512,  14  X.  W.  609, 
People,  121  111.  623,  13  X.  E.   194.  43   Am.   Rep.    728;   Stockport  Water- 

29.  Bowden  v.  Edison  Electric  II-  works  Co.  v.  Potter,  7  H.  &  X.  167. 

137 


§  90  Trade  or  Business. 

tion  of  some  business  from  which  injury  to  his  neighbor  ensues,  as 
where  noxious  smells  or  gases  are  emitted  therefrom,  he  is  liable 
therefor  even  though  he  may  have  used  reasonable  care  in  the 
prosecution  of  such  business.33  So,  if  a  business  is  a  nuisance  the 
defendant  will  not,  on  indictment,  be  entitled  to  an  acquittal  be- 
cause the  premises  were  kept  in  as  cleanly  a  manner  as  they  could 
be  kept  in  the  reasonable  prosecution  of  the  business.34  So,  it  is  no 
defense  to  a  prosecution  for  maintaining  a  nuisance,  consisting  of 
smoke,  soot,  and  noxious  gases  and  vapors  from  a  manufacturing 
establishment  that  the  business  is  carried  on  in  a  careful  and  pru- 
dent manner  and  that  nothing  has  been  done  by  those  managing 
it  that  was  not  a  reasonable  and  necessary  incident  of  the 
busiess.35 

§  90.  Where  nuisance  can  be  avoided. —  Where  a  business  can 
be  so  carried  on  that  it  will  not  constitute  a  nuisance  an  injunction 
restraining  the  carrying  on  of  such  business  will  not  be  issued,  but 
the  court  will  so  frame  its  order  that  the  business  may  be  continued 
provided  it  is  so  conducted  as  not  to  create  a  nuisance.36  So, 
where  a  person  is  injured  by  the  smell  from  a  market  place  owing 
to  the  fact  that  the  yards  where  the  cattle  are  enclosed  are  not  kept 
clean,  the  maintenance  of  the  market  place  will  not  be  enjoined 
but  the  court  will  require  that  the  yards  be  kept  in  a  clean  con- 
dition where  this  can  be  done,  and  it  will  avoid  the.  nuisance  com- 

"  All  persons  have  the  right  to  in-  33.  Frost    v.    Berkeley    Phosphate 

sist  that  a  business  in  any  degree  of-  Co.,  42  S.  C.  402,  20  S.  E.  280,  26  L. 

tensive  or  dangerous  to  them  shall  be  E.  A.  693,  46  Am.  St.  R.  736 ;   Price 

carried  on  with  such  improved  means  v.    Oakfield    Highland   Creamery   Co., 

and  appliances  as  experience  and  sci-  S7  Wis.  536,  24  L.  R.  A.  333,  58  N. 

enee  may  suggest  or  supply,  and  with  W.    1039.     As  to  smells  see   §§    157- 

such  reasonable  care  as  may  prevent  173,  herein. 

unnecessary    inconvenience    to    them.  34.  State  v.  Ball,  59  Mo.  321,  323. 

By  such  care  and  improved  methods  35.  People  v.  Detroit  White  Lead 

and     appliances,     many     occupations  Works,  82  Mich.  471,  46  N.  W.  735, 

formerly   regarded   as  nuisances  may  9  L.  R.  A.  722.     As  to  smoke  see  §§ 

now  be  carried  on,  even  in  populous  135-155,  herein. 

neighborhoods,  without  annoyance  to  36.  Chamberlain    v.    Douglass,    24 

any  one."     Windfall  Mfg.  Co.  v.  Pat-  App.  Div.   582,  48  N.  Y.  Supp.   710. 

terson,  148  Ind.  414,  421,  47  N.  E.  2,  See  §  91,  herein. 
37  L.  R.  A.  381,  62  Am.  St.  R.   537. 
per  Howard,  J. 

138 


Trade  or  Business.  §  90 

plained  of.37  And  where  a  laundry  business  is  so  carried  on  as  to 
be  a  nuisance  and  warrant  the  interference  of  equity,  yet  a  special 
injunction  has  been  so  modified  as  to  permit  defendants  to  conduct 
such  business  if  they  can  so  alter  and  change  the  mode  of  carry- 
ing it  on  as  not  to  occasion  damage  or  annoyance  to  the  plaintiff.38 
And  where  it  did  not  appear  from  the  record,  but  that  a  smoke- 
stack might  have  been  used  in  such  a  way  both  readily  and  easily, 
as  that  smoke  would  not  have  issued  therefrom,  the  court  said: 
"  But  be  that  as  it  may  ...  we  do  not  see  why  the  plaintiff 
should  not  be  restrained  from  so  using  his  smoke-stack  as  that  the 
soot  issuing  therefrom  shall  be  prevented  from  being  a  disturbance, 
annoyance,  and  source  of  positive  injury  to  the  defendant  and  his 
property."39  In  a  case  in  Alabama,  however,  where  an  electric 
light  was  complained  of  as  a  nuisance,  it  was  decided  that  it  not 
only  would  not  be  enjoined,  but  that  the  complainant  would  be  left 
to  his  legal  remedy,  it  appearing  that  by  the  adoption  of  improved 
appliances  the  injuries  complained  of  could  be  avoided  or  at  least 
so  diminished  that  they  would  not  be  in  excess  of  those  which 
were  ordinarily  incident  to  life  in  the  city.40  Where  a  decree  is 
entered  requiring  a  defendant  to  do  certain  things  to  avoid  the 
nuisance  and  also  forbidding  him  from  permitting  it  to  exist,  he 
cannot  relieve  himself  from  contempt  by  showing  that  he  has  com- 
plied with  the  order  as  to  the  adoption  of  the  prescribed  methods 
to  prevent  the  nuisance  where  it  appears  that  such  methods  did 
not  accomplish  the  desired  result,  since  in  such  case  he  should  adopt 
other  means  to  avoid  it,  or  discontinue  the  business  if  all  methods 
fail,  as  only  by  such  a  course  will  he  be  regarded  as  having  obeyed 
the  injunction.41  A  court,  however,  has  no  power  to  deal  with  the 
manner  in  which  the  proprietor  of  a  business  shall  arrange  a  part 
of  his  premises  so  as  to  lessen  an  annoyance,  such  as  a  noise, 
caused  by  the  carrying  on  of  such  business,  where  he  is  not  amen- 

37.  Miller  v.  Webster  City,  94  51.  See  as  to  action  for  removal 
Iowa,  162,  62  N.  W.  648.  'smokestack  §  138,  herein. 

38.  Warwick  v.  Wah  Lee  &  Co.,  40.  English  v.  Progress  Electric 
10  Phila.  (Pa.)  160,  31  Leg.  Int.  268.  Light  &  M.  Co.,  95  Ala.  259,  10  So. 
As  to  laundries  see  §  122,  herein.  134. 

39.  Sullivan  v.  Royer,  72  Cal.  248,  41.  Northwood  v.  Barber  Asphalt 
250,  251,  13  Pac.  655,  1  Am.  St.  Rep.  Pav.   Co.,    126    Mich.   284,   85   N.   W. 

724,  54  L.  R.  A.  454. 

130 


§§  91-93  Teade  or  Business. 

able  to  the  court  by  reason  of  the  character  of  the  case  against  him, 
as  where  a  nuisance  has  not  been  established.42 

§  91.  Where  nuisance  obviated  after  action  commenced. — 
Where  an  action  has  been  brought  to  restrain  the  carrying  on  of  a 
business  in  such  a  manner  as  to  create  a  nuisance  and  to  recover 
damages  and  it  appears  that  the  nuisance,  which  existed  at  the 
time  the  action  was  commenced,  has  been  obviated  by  a  change  in 
the  mode  of  conducting  the  business  so  that  it  no  longer  exists,  no 
injunction  will  be  granted.43  There  may,  however,  in  such  a  case 
be  a  recovery  by  the  plaintiff  of  damages  for  suck  injury  as  has 
been  sustained  by  him.44 

§  92.  Negligence  as  an  element. —  Where  a  business  is  of  itself 
a  nuisance,  one  who  has  been  injured  thereby  may  maintain  an 
action  for  such  injury,  though  no  negligence  exists,  negligence  not 
being  an  essential  element  in  such  case.45  But  where  a  business  is 
lawful  and  properly  .conducted,  it  is  not  a  nuisance  per  se.  It 
may,  however,  be  so  negligently  conducted  as  practically  to  be- 
come a  nuisance,  in  which  case  negligence  must  be  shown  to  entitle 
a  plaintiff  to  recover  damages.46 

§   93.  Effect  on  persons   of   ordinary  sensibility  the   test. — 

The  test  of  whether  a  trade  or  business  is  a  nuisance,  is  to  be  de- 
termined by  its  effect  upon  persons  of  ordinary  sensibility.  It  is 
not  enough  that  it  may  be  annoying  to  persons  of  delicate  nature 
or  extreme  sensitiveness.     The  fact  that  it  may  be  annoying  or 

42.  Scott  v.  Houpt,  8  Kulp.    (Pa.)  Y.  St.  R.  246,  9  L.  R.  A.  711,  affirm- 
42.     As    to    noises    see    §§     174-191,  ing  45  Hun,  257,  10  ST.  Y.  St.  R.  374. 
herein.  46.  Dunsbach  v.  Hollister,  49  Hun 

43.  Miller  v.  Edison  Electric  II-  (N.  Y.),  352,  353,  17  N.  Y.  St.  R. 
luminating  Co.,  66  App.  Div.  (N.  Y.)  461,  2  N.  Y.  Supp.  94,  aff'd  132  N. 
470,  73  N.  Y.  Supp.  376,  reversing  68  Y.  802,  30  N.  E.  1152,  44  N.  Y.  St. 
N.  Y.  Supp.  900.  R.  934.     See  Piehl  v.  Albany  R.   Co., 

44.  Moon  v.  National  Wall  Plas-  30  App.  Div.  (N.  Y.)  166,  51  N.  Y. 
ter  Co.,  31  Misc.  R.  (N.  Y.)  631,  66  Supp.  755.  See  §  89,  herein,  as  to 
N.  Y.  Supp.  33.  "  Duty  as  to  care  and  use  of  appli- 

45.  Bohan  v.  Port  Jervis  Gaslight  ances." 
Co.,  122  N.  Y.  18,  25  N.  E.  246,  33  N. 

140 


Trade  or.  Business. 


}§  94,  95 


offensive  to  one  who  is  ill,  or  afflicted  with  extreme  nervousness,  or 
by  reason  of  his  being  accustomed  to  an  elegant  and  dainty  mode 
of  life,  will  not,  of  itself,  render  it  a  nuisance.  The  annoyance  or 
injury  must  be  one  affecting  a  person  of  the  average  mental  and 
physical  condition.47 

§  94.  Intention  does  not  affect.—  The  intention  of  a  person  in 
establishing  or  carrying  on  a  business  does  not  affect  the  deter- 
mination of  the  question  of  whether  such  business  constitutes  a 
nuisance.  If  it  in  fact  appears  that  a  person  has  sustained  a  sub- 
stantial injury  either  as  to  his  home,  or  the  ordinary  comforts  of 
life,  or  in  the-^  use  of  his  property  by  a  business  established  and 
maintained  by  another,  the  intention  of  the  latter  is  immaterial.48 

§  95.  Effect  of  locality — Convenient  place. —  Localitv  may  con- 
stitute an,  important  element  in  determining  whether  or  not  an  act 
is  a  nuisance.49  A  trade  or  business  may  be  a  nuisance  in  one 
locality  and  not  in  another,50  and  it  is  no  answer  that  the  business 
was  carried  on  in  a  convenient  place,  when  it  is  in  fact  a  nuisance.51 


47.  Ruff  v.  Phillips,  50  Ga.  130; 
Davis  v.  Whitney,  68  N.  H.  66,  44 
Atl.  78;  Butterfield  v.  Klaber,  52 
How.  Pr.  (N.  Y.)  255;  Columbus 
Gaslight  &  Coke  Co.  v.  Freeland.  12 
Ohio  St.  392 ;  Appeal  of  Ladies'  Deco- 
rative Art  Club  (Pa.,  1888),  13  Atl. 
537 ;  Powell  v.  Bentley  &  Gerwig 
Furn.  Co.,  34  W.  Va.  804,  12  S.  E. 
1085,  12  L.  R.  A.  53;  McCann  v. 
Strang,  97  Wis.  551,  72  N.  W.  1117. 
See  §§  137,  163,  183,  herein. 

48.  Bonnell  v.  Smith,  53  Iowa, 
281,  5  N.  W.  128.  It  was  said  by  the 
court  in  this  case:  "Upon  the  ques- 
tion as  to  whetner  an  act  constitutes 
a  nuisance  it  is  not  necessary  to  in- 
quire into  the  intention  of  the  person 
doing  the  act.  The  best  intentions 
cannot  prevent  an  aet  from  being  a 
nuisance  where  it  otherwise  is  such, 
and     the     worst     intentions     cannot 


make  an  act  a  nuisance  where  it  oth- 
erwise is  not.  The  intention  might, 
to  be  sure,  be  a  proper  subject  of  in- 
quiry upon  the  question  of  exemp- 
lary damages."  Per  Adams,  Ch.  J. 
See  §§  92,  99,  161,  167,  herein. 

49.  Owen  v.  Phillips,  73  Ind.  284, 
295;  Commonwealth  v.  Miller,  139 
Pa.  77,  21  Atl.  138,  27  W.  N.  C.  257; 
St.  Helens  Smelting  Co.  v.  Tipping, 
11  H.  L.  Cas.  642,  35  L.  J.  Q.  B.  66, 
13  W.  R.  1083,  12  L.  T.  776,  11  Jur. 
785.  See  §§  54,  96,  97,  98,  127,  128, 
140,  165,  184,  186,  203,  herein,  as  to 
effect  of  locality. 

50.  Hurlburt  v.  McKone,  55  Conn. 
31,  10  Atl.  164.  See  §§  54,  96,  97, 
98,  127,  128,  140,  165,  184,  186,  203, 
herein. 

51.  Bamford  v.  Turnley,  3  B.  &  S. 
62,  31  L.  J.  Q.  B.  286,  9  Jur.  N.  S. 
377,  10  W.  R.  803.     See  Carey  v.  Led- 


141 


§96 


Trade  or  Business. 


A  business  which  is  not  a  nuisance, per  se  may  become  a  nuisance 
by  reason  of  its  location  in  a  residential  neighborhood  where  its 
operation  renders  the  homes  uncomfortable.52  So,  where  the  resi- 
dents of  a  .populous  community  are  affected  with  headache  and 
nausea  and  are  injured  in  their  health  by  reason  of  the  smoke,  soot 
and  noxious  gases  caused  by  the  carrying  on  of  a  business  in 
that  community,  it  has  been  decided  that  such  business  constitutes 
a  public  nuisance  which  may  be  abated.53  And  although  there 
were  a  number  of  manufacturing  establishments  in  the  neighbor- 
hood in  which  defendant's  mill  was  located,  such  mill  was  held  to 
be  a  nuisance  where  it  appeared  that  the  operation  of  the  ma- 
chinery rendered  conversation  in  plaintiff's  home  difficult,  and 
caused  a  jarring  of  the  house,  and  that  the  smoke  and  dust  there- 
from not  only  soiled  clothes  hung  out  to  dry  but  also  injured  the 
interior  decorations  and  contents  of  his  dwelling.54 


§  96.  Same  subject — Continued.— There  are,  however,  many 
inconveniences  and  annoyances  to  which  a  person  living  in  a  city 
must  submit  as  incidents  of  the  city  life.oa    So,  in  a  leading  case  it 


better,  13  C.  B.  N.  S.  470,  32  L.  J.  C. 
P.  104,  6  L.  T.  721,  10  W.  R.  803. 

So  it  has  been  declared  in  a  some- 
what recent  case  that  "  We  take  the 
law  to  be  well  settled  that,  in  ques- 
tions of  this  kind,  the  question 
whether  the  place  where  the  trade  or 
business  is  carried  on  is  a  proper  and 
convenient  place  for  the  purpose,  or 
whether  the  use  by  the  defendant  of 
his  own  land  is  under  the  circum- 
stances a  reasonable  use,  are  ques- 
tions that  ought  not  to  be  submitted 
to  the  finding  of  a  jury.  .  .  .  The 
proper  question  for  the  jury  was 
whether  the  operation  of  the  factory 
interfered  with  the  reasonable  and 
comfortable  enjoyment  by  the  plain- 
tiffs of  their  property,  or  occasioned 
material  injury  to  the  property  it- 
self." Susquehanna  Fertilizer  Co.  v. 
Spangler,   86  Md.   562,   572,   573,   63 


Am.    St.    Rep.    533,    39   Atl.    27,    per 
Bryan,  J. 

52.  McMorran  v.  Fitzgerald,  106 
Mich.  649,  64  N.  W.  569,  58  Am.  St. 
R.  511;  Rodenhausen  v.  Craven,  141 
Pa.  546,  21  Atl.  774,  so  holding  where 
a  carpet  cleaning  establishment  was 
located  in  a  neighborhood  devoted  to 
private  residences  and  rendered  plain- 
tiff's home  uncomfortable  by  the  dust 
and  moths  from  the  carpets  in  the 
process  of  cleaning. 

53.  People  v.  Detroit  White  Lead 
Works,  82  Mich.  471,  46  N.  W.  735, 
9  L.  R.  A.  722. 

54.  Hurlburt  v.  McKone,  55  Conn. 
31,  10  Atl.  164,  3  Am.  St.  R.  17. 

55.  Susquehanna  Fertilizer  Co.  v. 
Spangler,  86  Md.  562,  568,  39  Atl. 
270,  63  Am.  St.  R.  533;  Robinson  v. 
Baugh,  31  Mich.  290;  Eller  v.  Koeh- 
ler,  68,  Ohio  St.  51,  67  N.  E.  89,   12 


142 


Trade  or  Business.  §  9(5 

is  said :  "  According  to  our  settled  notions  and  habits,  there  are 
convenient  places,  one  for  the  home,  one  for  the  factory;  but,  as 
often  happens,  the  two  must  be  so  near  each  other  as  to  cause  some 
inconvenience.  The  law  cannot  take  notice  of  such  inconveniences, 
if  slight  or  reasonable,  all  things  considered,  but  applies  the  com- 
mon sense  doctrine  that  the  parties  must  give  and  take,  live  and 
let  live ;  for  here  extreme  rights  are  not  enforceable  rights,  at  any 
rate  not  by  injunction."56  And  where  one  carries  on  the  business 
of  finishing  steam  boilers  in  the  compact  part  of  a  city,  whereby 
the  occupant  of  an  adjoining  dwelling  is  seriously  annoyed  by  the 
noise  and  dust,  it  has  been  decided  that  the  latter  may  maintain 
an  action  on  the  case. against  the  former.57  So,  a  soap  boiling  es- 
tablishment in  a  city  which  renders  life  uncomfortable,  constitutes 
a  nuisance.58  And  a  glass  factory  has  been  held  to  be  a  nuisance 
where  located  in  a  city  in  a  section  in  which  there  are  no  other 
factories,  and  adjacent  to  a  hotel,  where  the  offensive  noises  and 
smoke  therefrom  were  such  that  guests  refused  to  accept  rooms  in 
certain  parts  of  the  hotel.59  Thus,  if  one  is  living  in  a  section  of  a 
city  which  is  given  over  to  manufacturing  industries,  he  may  be 
required  to  submit  to  greater  annoyances  than  if  he  were  living 
in  a  strictly  residential  part  of  the  same  city.6<>  So,  in  an  action 
against, one  for  an  alleged  injury  from  the  operation  of  machinery 
on  an,  adjoining  lot,  it  was  held  error  to  refuse  in  behalf  of  the  de- 
fendant to  instruct  the  jury  that:  "In  determining  the  question 
whether  the  plaintiff  has  suffered  actual  substantial  and  material 
injuries,  you  may  consider  the  locality  of  her  property  and  that 

Am.   Neg.   R.   89;  Huckenstine's   Ap-  58.  Winslow    v.    Bloomington,    24 

peal,   70   Pa.    102,   107,   10   Am.  Eep.  111.    App.    647;      Howard    v.    Lee,    3 

669;   St.  Helens  Smelting  Co.  v.  Tip-  Sandf.    (N.  Y.)    281.     As   to  fat  and 

ping,  11  H.  L.  Cas.  642,  35  L.  J.  Q.  bone  boiling  establishments  see  §  116, 

B.  66,  13  W.  R.  1083    12  L.  T.  776,  herein. 

11   Jur.   785.     See  §§    140,    165,    184,  59.  Leeds  v.   Bohemian  Art  Glass 

herein.  Works,    65    N.    J.    Eq.    402,    54    Atl. 

56.  Powell    v.    Bentley    &    Gerwig  1124. 

Turn.  Co.,  34  W.  Va.  804,  809,  12  S.  60.  Robinson   v.    Baugh,   31    Mich. 

E.  1085,  12  L.  R.  A.  53,  per  Holt,  J.,  290;   Hafer   v.   Guyman,    7    Pa.   Dist. 

citing  Bishop  Cont.  §  418.  R.  21,  20  Pa.  Co.  Ct.   321.     See  Gil- 

57.  Fish   v.    Dodge,    4    Denio    (N.  bert  v.  Showerman,  23  Mich.  448. 
Y.),    311,    47   Am.   Dec.   254.     As   to 

noises  see  §§  174-191,  herein. 

143 


§  'JG  Trade  ok  Business. 

of  the  defendant,  tins  nature  of  the  business  that  is  being  conducted 
by  the  defendant,  the  character  of  the  machinery  that  he  is  using, 
the  manner  of  using  the  property  producing  the  alleged  injuries; 
and  you  may  also  consider  the  kinds  of  business,  if  any,  which  are 
being  conducted  and  carried  on  in  the  vicinity  of  these  proper- 
ties. ...  If  you  find  from  the  evidence  that  the  plaintiff's 
property  is  situated  in  a  populous  city,  and  in  the  vicinity  of  other 
shops  of  the  same,  or  substantially  the  same  character  and  kind, 
then  you  may  consider  this  fact  in  determining  whether  the  plain- 
tiff has  suffered  injuries  of  the  kind  named.  A  party  dwelling  in 
a  populous  city,  and  in  the  vicinity  of  shops  and  factories,  cannot 
have  the  same  quiet  and  freedom  from  annoyances  that  he  would 
have  in  the  country  or  in  other  districts.  If  these  annoyances, 
should  you  so  find  them  to  be  such,  are  either  trifling  in  their 
nature,  or  are  such  as  under  the  particular  circumstances  of  this 
case  do  not  cause  real,  substantial,  and  material  injuries,  then  so 
findings,  the  plaintiff  could  not  recover."61  So,  the  operation  of 
cement  works,  located  in  a  manufacturing  district,  will  not  be  re- 
strained as  a  nuisance  on  account  of  the  dust  therefrom,  it  appear- 
ing that  the  dust  from  other  factories  and  from  the  streets  causes 
equally  as  much  annoyance  and  injury  as  that  from  the  works  com- 
plained of.62  There  is,  however,  a  limit  to  the  discomforts  and  an- 
noyances to  which,  a  party  may  be  required  to  subject  himself 
without  remedy  by  living  in  a  city  or  in  a  manufacturing  dia- 
trict.63  Though  a  locality  may  be  what  is  termed  a  manufactur- 
ing locality,  one  is  not  obliged  to  submit,  to  serious  annoyances  in 
excess  of  those  resulting  from  the  ordinary  uses  to  which  property 
is  there  devoted.64  And  if  in  view  of  all  the  circumstances  in- 
cluding the  locality  and  the  nature  and  extent  of  a  person's  en- 
joyment of  his  property  prior  to  the  acts  complained  of  the  an- 
noyance is  such  as  to  constitute  a  nuisance,  an  action  will  lie65 

61.  Eller  v.  Koehler,  68  Ohio  St.       Spangler,    86   Md.   562,   569,   39   Atl. 
51,  67  N.  E.  89,   12  Am.   Neg.  Rep.       270,  63  Am.  St.  R.  533. 

659.  64.  Mulligan  v.  Elias,  12  Abb.  Pr. 

62.  Roscoe  Lumber  Co.    v.   Stand-       N.  S.    (N.  Y.)   259. 

ard  Silica  Cement  Co.,  62  Apy.  Div.  65.  Bamford  v.  Turnley,  3  B.  &  S. 

(N.  Y.)   421,  70  N.  Y.  Supp.  1130.  62,  16  W.  R.  803,  9  Jur.  N.  S.  377, 

63.  Susquehanna    Fertilizer   Co.  v.       31  L.  J.  Q.  B.  286. 

144 


Trade  ok  Business.  §§  97,  98 

§  97.  Change  in  character  of  locality — Coming  into  nuisance. 
■ — Though  a  trade  or  business  may  not  have  been  a  nuisance  at  the 
time  and  place  of  its  original  location,  yet  it  may  become  so  by 
reason  of  the  development  of  the  locality,  as  in  the  case  of  an  in- 
crease of  population  and  extension  of  the  limits  of  an  adjacent 
city  or  town.66  And  where  owing  to  such  growth  or  development 
a  business  becomes  a  nuisance,  it  has  been  decided  that  it  should 
be  removed.67  So,  it  is  said  in  a  case  in  Pennsylvania  that :  "  Car- 
rying on  an  offensive  trade  for  any  number  of  years  in  a  place  re- 
mote from  buildings  and  public  roads',  does  not  entitle  the  owner 
to  continue  it  in, the  same  place,  after  houses  have  been  built  and 
roads  laid  out  in  the  neighborhood,  to  the  occupants  of  which 
and  travelers  upon  which,  it  is  a  nuisance.  As  the  city  extends 
such  nuisances  should  be  removed  to  the  vacant  grounds  beyond 
the  immediate  neighborhood  of  the  residence  of  the  citizens.  This, 
public  policy,  as1  well  as  the  health  and  comfort  of  the  population 
of  the  city,  demand."68  And  the  fact  that  a  trade  or  business  may 
have  been  continued  for  a  sufficient  length  of  time  to  confer  a  right 
by  prescription,  under  some  circumstances,  to  maintain  it,  will  not, 
in  this  class  of  cases,  confer  any  right  to  continue  the  same  after  j 
it  has  become  a  nuisance.69  But  if  one  erects  a  dwelling  house 
among  mills  and  factories  in  which  the  machinery  is*  run  by  steam 
power,  he  must  expect  to  suffer  the  ordinary  inconveniences  and 
annoyances  which  are  inseparable  from  such  establishments.70 

§  98.  Change  in  locality  from  residence  to  business  or  trade. — 
Where  the  character  of  a  section  has  been  changad  from  a  resi- 
dence to  a,  manufacturing  and  business  centre,  it  has  been  decided 
that  one  who  owns  a  residence  in  that  locality  cannot  recover  dam- 

66.  Ashbrook  v.  Commonwealth,  1  v.  Cross,  2  Car.  &  P.  483,  31  R.  R. 
Bush    (Ky.),   139,  89  Am.   Dec.  616.       684. 

See    §§    54,    98,    128,    140,    165,    184,  68.  Weir's  Appeal,  74  Pa.  St.  230. 

herein.  69.  Ashbrook  v.   Commonwealth,  1 

67.  Laflin    &    R.     Powder     Co.    v.  Bush    (Ky.),   139,   89   Am.   Dee.   616. 

Tearney,  131  111.  322,  21   N.  E.  516.       See,  also,  §  54,  herein. 

23  N.  E.  389,  7  L.  R.  A.  262,  19  Am  70.  Owen  v.  Phillips,  73  Ind.  284, 

St.  R.  34 ;  Kansas  City  v.  McAleer  295.     See,  also,  Lambeau  v.  Lewinski, 

31  Mo.  App.  433 ;   Brady  v.  Weeks,  5  47  111.  App.  656. 
Barb.  (N.  Y.)  157,  159.     But  see  Rex 

145 


/ 


I  99  Trade  or  Business. 

ages  for  annoyances  caused  by  the  operation  of  a  lawful  business,, 
which  is  necessary  in  the  town,  located  in  accordance  with  direc- 
tions from  the  local  authorities,  and  which  causes  no  more  annoy- 
ance than  is  ordinary  and  necessary.71  So,  in  this  connection  it  has 
been  declared  that  where  a  street  in  a  city  ceases  to  be  used  or 
occupied  as  a  place  of  residence  and  is  changed  into  a  place  of 
business,  no  one  or  two  persons  who  may  desire  to  continue  to  re- 
side therein  or  who  persist  in  residing  there  should  be  allowed 
to  prevent  the  carrying  on  of  a  lawful  and  useful  trade  in  such 
street,  because  they  are  or  may  be  subjected  to  annoyances  or  even 
loss  thereby,  as  it  would  be  better  that  they  should  go  elsewhere 
than  that  the  public  should  be  inconvenienced  by  arresting  a 
necessary  and  useful  business.72 

§  99.  Fact  that  business  is  lawful  is  immaterial.— A  lawful 
business  located  in  a  proper  place  and  conducted  in  a  proper 
manner,  cannot  be  treated  as  a  nuisance  per  se  although  it  may  be 
so  conducted  or  the  surrounding  circumstances  may  be  such  as  to 
make  it  a  nuisance.73  So,  it  has  been  declared  in  one  case  that 
"  a  lawful  as  well  as  unlawful  business  may  be  carried  on  so  as 
to  prove  a  nuisance.  The  law  in  this  respect  looks  with  an  im- 
partial eye  upon  all  useful  trades,  avocations  and  professions. 
However  ancient,  useful  or  necessary  the  business  may  be,  if  it  is 
so  managed  as  to  occasion  serious  annoyance,  injury  or  inconven- 
ience, the  injured  party  has  a  remedy.  Though  the  nuisance  be 
public,  rendering  the  guilty  party  liable  to  indictment,  the  sufferer 
may  recover  compensation  in  a  civil  suit,  proving  special  and 
peculiar  damage  to  himself."74  So,  a  nuisance  may  be  produced  by 
offensive  sounds  in  the  prosecution  of  a  business  lawful  per  se,75  or 
by  the  carrying  on  of  such  a  business  at  unreasonable  hours  to  the 

71.  Robins  v.  Dominion  Coal  Co.,  R.  461;  Pennoyer  v.  Allen,  56  Wis. 
Rap.  Jud.  Queb.  16  C.  S.  195.  502,  14  N.  W.  609,  43  Am.  Rep.  728. 

72.  Doellner  v.  Tynan,  38  How.  74.  Norcross  v.  Thorns,  51  Me.  503, 
Prac.   (N.  Y.)    176,  per  Morrell,  J.  504,    81    Am.    Dec.    588,    per    Dicker- 

73.  Windfall   Mfg.   Co.   v.   Patter-  son,  J. 

son,  148  Ind.  414,  420,  47  N.  E.  2,  62  75.  Bishop  v.  Banks,  33  Conn.  118, 

Am.  St.  R.  532,  37  L.  R.  A.  381,  per  121,    87    Am.    Dec.    197.     See    §    185, 

Howard,  J.;     Dunsbach  v.  Hollister,  herein. 
49  Hun    (N.  Y.),  352,   17  N.  Y.   St. 

146 


Trade  or  Business. 


99 


discomfort  of  those  residing  in  the  neighborhood.76     The  lawful 
character  of  the  results  of  an  occupation,  trade  or  mechanical  art, 
or  the  care  with  which  it  is, carried  on,  cannot  presume  a  right 
of  action  by  those  whose  enjoyment  of  life  and  property  is  dis- 
turbed by  the  mode  or  means  of  conducting  such  trade  or  mechani- 
cal art.     There  is  a  distinction,  however,  not  always  easily  denned 
between  acts  which  may  be  done  on  one's  own  premises,  although 
to  the  injury  of  adjoining  premises  or  their  appurtenances  withott 
responsibility  therefor  and  those  which  may  not.77    As  a  general 
rule,  any  business  or  trade,  however  lawful,  'which  materially  in- 
jures the  property  of  another,  or  affects  his  health,  or  materially 
interferes  with  the  ordinary  comfort  and  enjoyment  physically  of 
life,  constitutes  a  nuisance.78    It  is  generally  true  that  the  rule  is 
of  universal  application  that  while  a  man  may  prosecute  such  busi- 
ness as  he  chooses  on  his,  own  premises,  he  has  no  right  to  erect  and 
maintain  a  nuisance  to  the  injury  of  an  adjoining  proprietor,  or  of 
his  neighbor,  even  in  the  pursuit(of  a  lawful  trade.79    The  law  doe* 
not  allow  anyone,  whatever  his  circumstances  or  condition  may  be^ 
to  be  driven  from  his  home,  or  to  be  compelled  to  live  in  it  in  posi- 
tive discomfort,  although  caused  by  a  lawful  and  useful  business 
carried  on  in  his  vicinity.     The  maxim,  sic  utere  tuo  ut  allenum 
non  taedas,  expresses  the  well  established  doctrine  of  the  law.80 

cJVaT^o"    ECkhardt'    3    Grant       Ga§  LigU  °°*  2°  N'  J-  E*  *"-  205; 
vrrZl  W°lcott  v"  MeliclS  11   N.  J.  Ea    204 

77  McKeon  v.  See,  27  N.  Y.  Super.       66  Am.  Dec.  790;     Catlin  v    Patter 

Y   30°0      oT'  T  V,?  aff'd  51  *       8°n'    10   ^   Y-   St-   *•   724;      Fthv. 
1.  300    10  Am.  Rep.  659.  Dodge,  4  Denio  (N.  Y.)    311    47  Am 

78.  Barber   v.   Union  Woolen   Co.,       Dec.   254;      McClung  v.   North  Bend 

42  Conn.  399,  402;      Wahle  v.  Rein-       Coal  and  Coke  Co.,  9  Ohio  C      Ct  R 

2 Jt.    A32\f 6;  Seacord  "  Peo*     259;    Barkan  v-  *-<**  (Ohio)'  fa 

o"  3    13  K   E  P?if  \  affiTd  m  IIL       ™*7'  W   BUU-   342 »  *<*b  -   Car 
WJ,  13  N.  E.  194;  Susquehanna  Fer-       negie,   145   Pa.  324,  22   Atl    649    27 

tihzer   Co.   v.   Spangler,   86   Md.   562,       Am.  St.  R.  694,  699-   Dennis  v    Frk 

39  At,.  270,  63  Am.  St.  R.  533;   Sus-       hardt,  3  Grant  Cas.   (Pa"  Pet 

Z    Z  Z    [7  C°-  "  MaI°ne'  73      n°yer  V'  AIlen'  56  Wis.  502,  14  N   W 
Md.    268,    276,   20   Atl.    900,   25   Am.       609,  43  Am.  Rep.  728 

kt.  R.  595,  9  L.  R.  A.  737;   Scott  v.  79.  Heecr  v    I  ioht    sn   xr    v    **« 

Bay,   3   Md.   431,   446;      Robinson   v.       582,  36  Am    Rep    654    «r  ifiH        T 

Baugh,  31   Mich.  290;  Attomey-Gen-      See'catlin v.  Patter on,7o  N  "y^ 

Eq.   415,   417;  Cleveland  v.    Citizens  80.  Ross  v.  Butler,  19  N.  J    Eq. 

147 


§  100  Trade  or  Business. 

Therefore,  one  who  carries  on  a  lawful  trade  or  business  in  such 
a  manner  as  to  prove  a  nuisance  to  his  neighbor,  must  answer  in 
damages  therefor,  and  it  is  not  necessary  to  a  right  of  action  that 
one  should  be  driven  from  his  dwelling,  it  being  enough  that  the 
enjoyment  of  life  and  property  be  rendered  uncomfortable.81  So, 
a  person  will  be  enjoined  from  carrying  on  a  business,  however 
legitimate,  which  renders  a  neighbor's  dwelling  house  unfit  for 
protection  and  wThich  works  inconvenience,  hurt,  annoyance  and 
discomfort  to  such  neighbor.82  So  where  a  tannery  emits  smells 
which  substantially  impair  the  comfort  and  enjoyment  of  adjacent 
owners,  it  will  constitute  a  nuisance  though  the  business  is  a  law- 
ful one,  is  properly  conducted,  and  the  smells  are  only  such  as 
are  "necessarily  incident  to  such  business*. S3 

§  100.  Development  of  natural  resources  on  one's  land. — 
Where  persons  are  engaged  in  a  lawful  business  or  industry,  con- 
sisting of  the  development  of  natural  resources  of  land  and  in 
which  the  interests  of  an  entire  community  are  concerned  and 
large  expenditures  have  been  made,  as  in  the  case  of  the  opera- 
tion of  coal  mines,  they  are  at  liberty  to  carry  on  that  business  in 
the  ordinary  way  and  while  so  doing  are  not  accountable  for  cir- 
cumstances which  they  cannot  control  as  where,  by  the  operation 
of  such  mines  in  the  usual  way,  a  natural  drainage  stream  is  ren- 
dered impure  by  the  draining  or  pumping  of  percolating  water  into 
the  land.  The  damage  resulting  in  such  a  case  is  declared  to  be 
damnum  absque  injuria.8*  As  was  said  by  the  court  in  this  case: 
"It  will  be  observed  that  the  defendants  have  done  nothing  to 
change  the  character  of  the  water,  or  to  diminish  its  purity,  save 
what  results  from  the  natural  use  and  enjoyment  of  their  own 
property.  They  have  brought  nothing  on  to. the  land  artificially. 
The  water  which  formed  into  Meadow  Brook  is  the  water  which 

294,  298,   97  Am.  Dec.   654,  per   The  Angel,  41  N.  J.  Eq.  316,  56  Am.  Rep. 

Chancellor.  1,  7  Atl.  432. 

81.  Bohan  v.  Port  Jervis  Gaslight  83.  Pennoyer  v.  Allen.  56  Wis. 
Co.,  122  N.  Y.  18,  23,  33  N.  Y.  St.  502,  14  N.  W.  609,  43  Am.  Rep.  728. 
R.  246,  25  N.  E.  246,  9  L.  R.  A.  711,  84.  Pennsylvania  Coal  Co.  v.  San- 
affirming  45  Hun,  257,  10  N.  Y.  St.  derson,  113  Pa.  126,  6  Atl.  453,  57 
R.  374.  Am.  Rep.  445. 

82.  Pennsylvania     R.     I.     Co.     v. 

14S 


Trade  or  Business.  §  100 

the  mine  naturally  discharges;  its  impurity  arises  from  natural, 
not  artificial,  causes.  The  mine  cannot,  of  course,  be  operated  else- 
where than  where  the  coal  is  naturally  found,  and  the  discharge  is 
the  necessary  incident  to  the  running  of  it.  It  must  be  conceded, 
we  think,  that  every  man  is  entitled  to  the  ordinary  and  natural 
use  and  enjoyment  of  his  property;  he  may  cut  down  the  forest 
trees,  clear  and  cultivate  his  land,  although  in  so  doing  he  may 
dry  up  the  sources  of  his  neighbor's  springs,  or  remove  the  natural 
barriers  against  wind  and  storm.  If,  in  the  excavation  of  his  land, 
he  should  uncover  a  spring  of  water,  salt  or  fresh,  acidulated  or 
sweet,  he  will  certainly  not  be  obliged  to  cover  it  up  again,  or  to 
conduct  it  out  of  its  course,  lest  the  stream,  in  its  natural  flow, 
may  reach  his  neighbor's  land.  It  has  always  been  considered  that 
land  on  a  lower  level  owes  a  natural  servitude  to  that  on  a  high 
level,  in  respect  of  receiving  without  claim  for  compensation  by 
the  owner,  the  water  naturally  flowing  down  to  it.     .     .  The 

right  to  mine  coal  is  not  a  nuisance  in  itself;  it  is,  as  we  have  said, 
a  right  incident  to  the  ownership  of  coal  property,  and  where  exer- 
cised in  the  ordinary  manner,  and  with  due  care,  the  owner  cannot 
be  held  for  permitting  the  natural  flow  of  mine  water  over  his  own 
land,  into  the  watercourse,  by  means  of  which  the  natural  drainage 
of  the  country  is  effected.  There  are,  it  is  wTell  known,  percola- 
tions of  mine  water  into  all  mines ;  whether  the  mine  be  operated 
by  tunnel,  slope  or  shaft,  water  will  accumulate,  and,  unless  it  can 
be  discharged,  mining  must  cease.  The  discharge  of  this  acidu- 
lated water  is  practically  a  condition  upon  which  the  ordinary  use 
and  enjoyment  of  coal  lands  depends ;  the  discharge  of  the  water 
is  therefore  part  and  parcel  of  the  process  of  mining,  and  as  it 
can  only  be  effected  through  natural  channels,  the  denial  of  this 
right  must  inevitably  produce  results  of  a  most  serious  character 
to  this,  the  leading  industrial  interest  of  the  State."85  So,  in  a 
recent  case  it  is  decided  that  where  propsrty,  which  is  located  in 
a  sparsely  settled  district  and  is  specially  adapted  for  the  manu- 
facture of  vitrified  brick  by  reason  of  the  slate  thereon,  which  con- 
stitutes its  chief  value,  is  used  for  such  purpose,  and  there  is  no 
negligence  in  the  operation  of  the  plant  and  modern  methods  and 
appropriate  appliances  are  used  and  the  inconveniences  or  annoy- 

85.  Per  Mr.  Justice  Clark. 

149 


101,  102 


Trade  or  Business. 


ance  is  only  slight  and  such  as  is  the  natural  and  necessary  con- 
sequences of  the  right  of  the  owner  to  develop  the  resources  of  his 
land,  he  will  not  be  required  to  abandon  his  enterprise  or  be  liable 
to  damages.86 

§    101.  Trade   a  nuisance   does  not  render  building  such. — 

The  fact  that  a  trade  or  business  constitutes  a  nuisance  does  not 
render  the  building  in  which  it  may  be  carried  on  a  nuisance,  nor 
render  it  liable  to  destruction  by  way  of  abating  the  nuisance 
caused  by  the  misuse  thereof.87 

§  102.  Injunction  against  proposed  business. —  The  fact  that  a 
business  which  is  lawful  may  become  a  nuisance  after  it  has  been 
commenced  is  not  a  sufficient  ground  for  enjoining  the  same.88  It 
must  clearly  appear  to  the  satisfaction  of  the  court  that  it  will  be- 
come a  nuisance.89  So,  it  has  been  said  in  this  connection :  "  Be- 
fore a  court  of  equity  will  restrain  a  lawful  work  from  which 
merely  threatened  evils  are  apprehended,  the  court  must  be  satis1- 
fied  that  the  evils  anticipated  are  imminent  and  certain  to  occur. 


86.  Phillips  v.  Lawrence  Vitrified 
Brick  &  Tile  Co.  (Kans.,  1905),  82 
Pac.  787.  This  case  was  an  action 
for  damages  and  an  injunction  re- 
straining the  carrying  on  of  the  busi- 
ness on  the  ground  of  smoke,  dust, 
and  cinders  from  the  plant,  which 
were  cast  upon  adjoining  premises, 
killing  trees  and  causing  other  in- 
jury. The  evidence,  which  was  con- 
flicting, showed  no  substantial  injury. 
Upon  the  general  question  it  was  said 
by  the  court :  "  The  defendant  was 
bound  to  make  a  lawful  and  reason- 
able use  of  its  property,  and  if  it 
made  an  unlawful  or  unreasonable 
use,  so  as  to  produce  material  injury 
or  great  annoyance  to  those  in  the 
neighborhood,  the  law  will  hold  it 
responsible  for  the  consequent  dam- 
age. The  making  of  brick  is  a  useful 
and  necessary  business,  and  the  fact 
that  it  may  produce  some  annoyance 


or  discomfort  to  those  nearby  does 
not  necessarily  justify  interference  or 
create  civil  liability.  Ordinarily  an 
owner  may  make  a  lawful  and  rea- 
sonable use  of  his  property,  although 
it  may  cause  some  annoyance  or  dis- 
comfort to  those  in  the  vicinity,  if 
such  inconvenience  and  discomfort 
are  only  slight,  and  are  the  natural 
and  necessary  consequences  of  the  ex- 
ercise of  the  owner's  rights  in  de- 
veloping the  resources  of  his  prop- 
erty." 

87.  Miller  v.  Burch,  32  Tex.  208, 
5  Am.  Rep.  242.  As  to  power  of  mu- 
nicipality to  destroy  building  see 
Chap  XIV,  herein. 

88.  Windfall  Mfg.  Co.  v.  Patter- 
son, 148  Ind.  414,  47  N.  E.  2,  37  L. 
R.  A.  381. 

89.  Bowen  v.  Mauzy,  117  Ind.  258, 
19  N.  E.  526. 


150 


Trade  or  Business.  §§  103,  104 

An  injunction  will  not  issue  to  prevent  supposed  or  barely  possible 
injuries.90 

§  103.  Injunction  against  erection  of  building  for  a  business 
or  trade. — The  erection  of  a  building  may  be  restrained  by  the 
court  where  it  appears  that  such  building  if  erected  would  be  used 
for  a  purpose  which  is  a  nuisance  per  se.n  In  the  case  of  the 
proposed  erection  of  a  building,  it  must,  appear,  to  justify  an  in- 
junction against  its  erection,  that  it  will  necessarily  constitute  a 
nuisance  as  in  the  case  of  the  carrying  on  of  a  noisome  trade  in- 
jurious to  health  and  to  the  comfort  and  enjoyment  of  life.92  And 
it  has  been  declared  that  where  a  building  is  to  be  used  for  manu- 
facturing purposes,  the  case  must  be  a  very  strong  one  which 
would  justify  the  granting  of  an  injunction  restraining  its  erec- 

+ "         93       O  ....  O 

tion.  bo,  an  injunction  restraining  the  erection  of  ,a  steam  mill 
was  refused  where  it  did  not  sufficiently  appear  from  the  evidence 
that  the  building  would,  when  used  for  the  purpose  contemplated, 
necessarily  constitute  a  nuisance.94  In  another  case  where  the 
building  was  to  be  used  for  boiling  the  carcasses  of  dead  animals 
it  was  decided  that  while  the  court  would  enjoin  the  proposed  use 
of  the  building,  it  would  not  enjoin  its  erection.95  In  a  bill  for  an 
injunction  in  such  a  case  all  the  facts  and  circumstances  should 
be  clearly  and  definitely  stated  so  that  the  court  may  be  able  to 
determine  whether  a  nuisance  will  in  fact  be  created.96 

§  104.  Nuisance  maintained  in  another  town  where  it  is  not 
complained  of.— In  an  action  by  residents  of  a  town  who  com- 
plain of  a  nuisance  caused  by  the  carrying  on  of  a  business  in  a 
neighboring  town,  where  it  is  not  complained  of  by  the  inhabitants 

90.  Windfall  Mfg.  Co.  v.  Patter-  95.  Czarniecki's  Appeal  (Pa.)  11 
son,  148  Ind.  414,  47  N.  E.  2,  37  L.  Atl.  660.  As  to  fat  and  bone  boiling 
R.  A.  381,  per  Howard,  J.  establishments  see  §  116,  herein. 

91.  Rhodes  v.  Dunbar,  57  Pa.  274,  96.  Adams  v.  Michael,  38  Md    1<>3 
98  Am.  Dec.  221.  17  Am.  Eep.   576.       As  to  sufficient 

92.  Ray  v.  Lynes,  10  Ala.  63,  64,  statement  of  grounds  for  injunction, 
per  Ormond,  J.  see  Rogers  v.  John  Week  Lumber  Co.! 

93.  Walcott   v.    Melick,    11    N.    J.  93  N.  W.  821. 
Eq.  204,  66  Am.  Dec.  790. 

94.  Thebaut    v.    Canova,    11    Fla. 
143. 

151 


§§  105,  106  Teade  or  Business. 

of  the  latter,  it  has  been  decided  that  an  injunction  will  not  be 
granted  restraining  the  carrying  on  of  such  business  in  such  a 
manner  as  to  create  a  nuisance  generally,  but  that  the  defendant 
should  be  enjoined  from  so  conducting  it  as  to  create  a  nuisance 
to  the  complainants  at  their  place  of  residence.97 

§  105.  Statute  enjoining  malicious  erection  of  structure  con- 
strued.— "Where  a  statute  provides  that  the  malicious  erection  of 
structure  by  a  lessee  or  owner  of  land  with  the  intention  of  annoy- 
ing or  injuring  any  proprietor  of  adjoining  lands,  may  be  enjoined, 
it  has  been  decided  that  the  malicious  quality  of  the  act  must  be 
the  predominant  one;  that  the  question  of  malice  is  to  be  deter- 
mined by  the  character,  location  and  use  of  the  structure  as  well 
as  by  an  inquiry  into  the  actual  motive  of  the  persxra ;  and  that 
the^  acts  referred  to  by  such  a  statute  must,  as  a  general  rule,  go 
beyond  those  of  petty  business  competition.  So,  where  person* 
occupied  adjoining  stores,  one  of  which  came  up  to  the  street  line 
and  the  other  was  a  few  feet  back,  and  the  proprietor  of  the  latter 
store  had  a  show  case  made  to  place  on  the  platform  in  front  of  his 
store  for  the  purpose,  primarily,  of  displaying  his  goods  to  the  best 
advantage,  and  secondarily  of  obstructing  a  view  of  the  goods  dis- 
played in  the  adjoining  store  and  to  injure  and  annoy  the  proprie- 
tor thereof  in  his  use  of  such  store,  it  was  decided  that  a  case  had 
not  been  shown  for  the  granting  of  an  injunction  under  the  stat- 
ute.98 

§  106.  Bakery.—  A  bakery  is  a  lawful  buisness  and  is  not  a 
nuisance  per  se.  It  is  a  business  which  is  essential  in  populous 
communities.  The  fact  that  it  may  cause  some  annoyance  and  dis- 
comfort to  an  adjoining  owner  is  not  a  sufficient  ground  for  grant- 
ing an  injunction  restraining  its  operation  though  it  is  located 
in  a  residential  neighborhood.  It  must  appear  that  some  substan- 
tial injury  is  sustained  in  such  case  or  that  the  annoyance  com- 
plained of  is  an  unnecessary  one.99 

97.  Williams  v.  Osborne,  40  N.  J.  99.  Alexander  v.  Stewart  Bread 
Eq.  235.                                                            Co.,  21  Pa.  Super.  Ct.  526. 

98.  Gallagher  v.   Dodge,  48  Conn. 
387,  40  Am.  Rep.  182. 

152 


Tkade  ok  Business. 


§107 


§  107-  Blacksmith  shop. — A  blacksmith  shop  is  not  a  nuisance 
per  se,m  and  the  use  of  premises  for  such  a  purpose  will  not  be 
enjoined  on  the  ground  that  it  may  become  a  nuisance,  for  the  busi- 
ness being  a  lawful  and  legitimate  one  it  is  presumed  that  it  will 
be  properly  conducted.101  Nor  will  a  court  ordinarily  enjoin  the 
erection  of  a  building  to  be  used  for  such  a  purpose,102  though  it 
has  been  decided  that  where  such  an  injunction  has  been  granted, 
the  order  will  not  be  disturbed  unless  it  clearly  appear  that  there 
has  been  an  abuse  of  discretion.103  A  blacksmith  shop  may,  how- 
ever, by  reason  of  its  location  or  the  manner  in  which  it  is  con- 
ducted be  a  nuisance.  So,  a  finding  that  such  a  shop  was  a  nuis- 
ance was*  held  to  be  authorized  where  it  was  shown  ,that  it  was 
within  a  few  feet  of  the  plaintiff's  hotel  and  that  the  plaintiff  was 
injured  by  the  dust,  ashes,  and  cinders  therefrom.104  And  where 
it  appeared  that  the  occupants  of  the  adjoining  premises,  were  de- 
prived of  their  rest  and  sleep  owing  to  the  operation  of  such  a  shop 
at  unreasonable  hours,  it  was  held  that  an  injunction  restraining 
its  operation  would  be  granted.105 


100.  Ray  v.  Lynes,  10  Ala.  63; 
Whitney  v.  Bartholomew,  21  Conn. 
213;  Whitaker  v.  Hudson,  65  Ga.  43; 
Bowen  v.  Mauzy,  117  Ind.  258,  19  N. 
E.  526;  Fancher  v.  Grass,  60  Iowa, 
505,  15  N.  W.  302;  Marrs  v.  Fiddler, 
24  Ky.  Law  Rep.  722,  69  S.  W.  953; 
Chambers  v.  Cramer,  49  W.  Va.  395, 
38  S.  E.  691,  54  L.  R.  A.  545.  See 
Fancher  v.  Trudel,  71  N.  H.  621,  52 
Atl.  443. 

101.  Chambers  v.  Cramer,  49  W. 
Va.  395,  38  S.  E.  691,  54  L.  R.  A. 
545. 

102.  Ray  v.  Lynes,  10  Ala.  63,  in 
which  it  is  said :  "  The  proposed  erec- 
tion must  be  such,  as  in  judgment  of 
law,  to  threaten  materially  to  im- 
pair the  comfort  of  the  existence  of 
those  living  near  it,  to  authorize  the 
interference  of  a  court  of  chancery; 


and  we  do  not  think  this  can  be  af- 
firmatively said  in  advance  of  a 
blacksmith  shop."  Per  Ormond,  J. 
See,  also,  Marrs  v.  Fiddler,  24  Ky. 
Law  R.  722,  69  S.  W.  953. 

103.  Whitaker  v.  Hudson,  65  Ga. 
43,  in  which  case  the  court  said: 
"  The  granting  of  this  injunction  by 
the  chancellor  shows  that  the  evi- 
dence, in  his  opinion,  preponderated 
in  favor  of  the  complainant,  and  that 
he  would  allow  a  jury  to  pass 
thereon,  and  therefore  we  will  not 
interfere  with  his  judgment,  and  we 
will  add,  that  if  he  had  refused  it  we 
should  not  have  reversed  it."  Per 
Crawford,  J. 

104.  Norcross  v.  Thorns,  51  Me. 
503,  81  Am.  Dec.  588. 

105.  Peacock  v.  Spitzelberger,  16 
Ky.  Law.  R.  803,  29  S.  W.  877. 


153 


§  108 


Tkade  or  Business. 


§  108.  Blasting.— Where,  as  a  result  of  blasting  upon  a  per- 
son's, premises,  rocks  are  thrown  upon  and  injure  adjoining  prem- 
ises it  is  decided  that  the  one  upon  whose  premises  the  blasting 
is  done  is  liable  for  the  injury  so  caused,  though  there  is  no  negli- 
gence on  his  part.106  And  where  a  blast  was  carelessly  set  off  by  a 
contractor  on  a  public  work  as  a  result  of  which  stones  were 
thrown  against  plaintiff's  shop,  causing  his  workmen  to  leave  in 
fear  and  his  business  to  be  suspended,  it  was  held  that  the  plain- 
tiff might  recover  for  the  interruption  of  his  business,  the  measure 
of  damages  being  the  value  to  him  of  the  work  prevented  by  de- 
fendant's negligence,  from  being  done.107  In  a,case  in  New  York, 
however,  it  has  been  decided  that  the  use  of  explosives  by  a  rail- 
road company  in  excavating  for  its  roadbed  does  not  create  a  nuis- 
ance rendering  the  company  liable  without  regard  to  the  question 
of  negligence,  the  blasting  being  a  lawful  and  necessary  act  done  on 
the  company's  own  land  to  fit  it  for  a  lawful  business.108  The  court 
said  in  this  case :  "  The  defendant  was  here  engaged  in  a  lawful 
act.  It  was  done  on  its  own  land  to  fit  it  for  a  lawful  business. 
It  was  not  an  act  which,  under  all  circumstances,  would  produce 
injury  to  his  neighbor,  as  is  shown  by  the  fact  that  other  buildings 
nearby  were  not  injured.  The  immediate  act  was  confined  to  its 
own  land,  but  the  blasts,  by  setting  the  air  in  motion,  or  in  some 
other  unexplained  way,  caused  an  injury  to  the  plaintiff's  house. 
The  lot  of  the  defendant  could, not  be  used  for  its  roadbed  until 
it  was  excavated  and  graded.  It  was  to  be  devoted  to  a  common 
use,  that  is,  to  a  business  use.  The  blasting  was  necessary,  was 
oarefully  done,  and  the  injury  was  consequential.  There  was  no 
technical  trespass.  Under  these  circumstances,  we  think,  the  plain- 
tiff has  no  legal  ground  of  complaint.  The  protection  of  property 
is  doubtless  one  of  the  great  reasons  for  government.  But  it  is 
equal  protection  to  all  which  the  law  seeks  to  secure.  The  rule 
governing  the  rights  of  adjacent  land  owners  in  the  use  of  their 
property,  seeks  an  adjustment  of  conflicting  interests  through  a 

106.  Tremain  v.  The  Cohoes   Co.,  107.  Hunter  v.  Fanen,   127  Masa. 

2  N.  Y.  163,  51  Am.  Dec.  284;  Hay       48,  34  Am.  Rep.  423. 
v.  The  Cohoes  Co.,  2  N.  Y.   159,  51  108.  Booth  v.  Rome,  W.  O.  T.  R. 

Am.  Dec.  279.  Co.,  140  N.  Y.  267,  35  N.  E.  592,  55 

N.  Y.  St.  R.  656,  24  L.  R.  A.  105. 

154 


Trade  or  Business.  §  109 

reconciliation  by  compromise,  each  surrendering  something  of  his 
absolute  freedom  so  that  both  may  live.  To  exclude  the  defendant 
from  blasting  to  adapt  its  lot  to  the  contemplated  uses,  at  the  in- 
stance of  the  plaintiff,  would  not  be  a  compromise  between  con- 
flicting rights,  but  an  extinguishment  of  the  right  of  the  one  for 
the  benefit  of  the  other.  This  sacrifice,  we  think,  the  law  does  not 
exact.  Public  policy  is  promoted  by  the  building  up  of  towns  and 
cities  and  the  improvement  of  property.  Any  unnecessary  re- 
straint on  freedom  of  action  of  a  property  owner  hinders  this.  The 
law  is  interested  also  in  the  preservation  of  property  and  property 
rights  from  injury.  Will  it  in  this  case  protect  the  plaintiff's  house 
by  depriving  the  defendant  of  his  right  to  adapt  his  property  to  a 
lawful  use,  through  means  necessary,  usual,  and  generally  harm- 
less?   We  think  not."109 

§  109.  Bowling  alleys. — A  bowling  alley  kept  for  gain  or  hire 
was  held  to  be  a  public  nuisance  at  common  law,  the  maintenance 
of  which  a  village  corporation,  having  powers  to  pass  by-laws  re- 
lating to  nuisances,  might  prohibit,110  or  for  which  an  indictment 
would  be  against  the  keeper.111  In  a  recent  case,  however,  where 
a  bill  had  been  filed  to  restrain  the  proprietor  of  a  bowling  alley 

109.  Per  Andrews,  Ch.  J.  Com-  drinking  and  gaming.  So  far  as  I 
pare  Morgan  v.  Bowes,  42  N.  Y.  St.  have  been  able  to  discover,  erections 
R.  791,  17  N.  Y.  Supp.  22.  of   every   kind   adapted    to   sports   or 

110.  Tanner  v.  Village  of  Albion,  amusements,  having  no  useful  end, 
5  Hill  (N.  Y.),  121,  40  Am.  Dec.  337.  and   notoriously    fitted    up    and    con- 

The  following  quotation  from  this  tinued  with  the  view  to  make  a  profit 
case 'shows  how  establishments  of  this  for  the  owner  are  considered  in  the 
kind  were  regarded  in  the  earlier  de-  books  as  nuisances.  Not  that  the 
cisions.  "  Establishments  of  this  law  discountenances  innocent  relaxa- 
kind  in  populous  communities  are,  at  tion,  but  because  it  has  become  mat- 
best,  and  even  when  used  without  ter  of  general  observation  that  when 
hire,  very  noisy,  and  have  a  tendency  gainful  establishments  are  allowed 
to  collect  idle  people  together  and  de-  for  their  promotion  such  establish- 
tain  them  from  their  business.  When  ments  are  usually  perverted  into  nur- 
built  and  kept  on  foot  for  gain,  the  series  of  vice  and  crime."  Per 
owner  is  interested  to  invite  and  pro-  Cowen,  J. 

cure  as  full  an  attendance  as   possi-  111.  Bloomhuff  v.  State,  8  Blackf. 

ble,  day  after  day,  and  for  this  pur-  (Ind. )    205;   State  v.  Haines,  30  Me. 

pose  temptations  beyond  mere  amuse-  65. 
ment   are  often  resorted  to,  such  as 

155 


§109 


Teade  or  Business. 


from  permitting  anyone  to  play  upon  its  alley,  and  from  permit 
ting  loud  and  boisterous  noises  to  be  made  by  persons  there,^  a  re- 
fusal to  grant  an  injunction  was  sustained.  In  this  case  it  ap- 
peared that  at  the  close  of  the  appellant's  evidence,  the  judge  said : 
"  I  cannot  regulate  the  noise  of  a  city  by  injunctions  and  I  am  not 
going  to  try  it.  If  these  people  have  made  any  noise  there  that 
injured  this  property,  the  property  of  the  complainant  here,  she 
has  her  remedy  at  law;  she  can  go  before  a  jury,  and  if  she  can 
satisfy  a  jury  that  her  property  has  been  damaged  by  their  act, 
or  by  thieir  improper  use  of  their  premises,  then  she  can  get  a 
verdict."  This  language  the  appellate  court  declared,  was  a  terse 
expression  of  its  views  and  said :  "  The  appellant  may  sue  and  re- 
cover damages  in  a  court  of  law  for  any  abuse  of  the  right  of  the 
appellee  to  use  its  own  property,  but  choosing  to  live  in  a  great  city, 
she  must  take  such  life  with  the  inevitable  concomitant  of  city 
amusements.  She  cannot  require  a  court  of  chancery  to  enjoin 
them,  nor  to  take  charge  of  their  conduct,  with  the  certain  follow- 
ing of  applications  to  punish  for  contempt,  with  or  without 
cause."112  And  in  a  later  case  it  is  declared  that  bowling  alleys 
are  not  necessarily  nuisances  per  se,  but  may  be  so  by  reason  of 
their  location.113 

§  110.  Breweries  and  distilleries.— A  brewery  is  not  neces- 
sarily a  nuisance,  per  se/14  though  it  may  become  so  from  the  man- 
ner in  which  it  is  conducted.  So  disagreeable  odors  caused  by  the 
flow  of  impure  water  from  a  brewery  along  the  streets  of  a  city  in 
front  of  a  private  residence  which  impair  the  enjoyment  of  such 
property,  has  been  held  to  be  a  nuisance  which  may  be  enjoined.11'' 
And  where  a  person  erected  on  his  land  a  distillery  and  divers  slop 
pools  and  hog  styes  and  fed  the  hogs  in  these  pools  and  styes  with 
the  slop  from  said  distillery  and  permitted  slops  and  offal  to  pass 
from  the  styes  into  a  creek  which  flowed  through  and  over  plain- 
tiff's land,  thus  causing  vapors  and  stenches  to  arise  therefrom 

112.  Mende  v.  Sociala  Turn  114.  O'Reilly  v.  Perkins,  22  R.  I. 
Verein,  66  111.  App.  591,  per  Mr.  Jus-  364,  48  Atl.  6;  Gorton  v.  Smart,  1 
tice  Gary.  Sim.  &  S.  66,  1  L.  J.  O.  S.  Ch.  36. 

113.  Harrison  v.  People,  101  111.  115.  Smith  v.  Fitzgerald,  24  Ind. 
App.  224.  316. 

156 


Trade  oe  Business.  §§  111,  112 

and  render  a  dwelling  house  of  plaintiff  unwholesome,  it  was  held 
to  constitute  a  nuisance.116  But  where  a  proceeding  was  brought  to 
restrain  the  erection  of  a  brewery  on  the  ground  that  it  would  con- 
stitute a  nuisance  when  in  operation,  it  was  decided  that  there 
being  nothing  to  show  that  it  would,  in  fact,  be  a  nuisance,  a  de- 
murrer to  the  bill  was  properly  sustained.1 


117 


§  111.  Brick,  lime  and  lumber  kilns.—  A  brick  kiln  is  not  a 
nuisance  per  se  though  it  may  become  a  nuisance  where  by  reason 
of  its  location  the  smoke  and  noxious  gases  therefrom  cause  ma- 
terial discomfort  to  the  occupants  of  neighboring  residences.118 
So,  the  maintaining  of  a  brick  kiln  by  one  upon  his  premises  so  as 
to  be  materially  offensive  to  his  neighbor,  or  to  injure  the  prop- 
erty of  another,  or  to  expose  it  to  danger,  constitutes  a  nuisance 
which  may  be  enjoined.119  And  likewise  a  lime  kiln  may  be  a  nuis- 
ance and  the  owner  of  the  same  liable  to  an  adjoining  owner 
though  the  latter  acquired  his  property  after  the  kiln  was  estab- 
lished.120 And  where  land,  on  which  was  a  kiln  for  drying  lumber, 
was  leased  to  a  party  with  knowledge  by  the  owner  that  the  kiln 
would  be  used  for  such  purpose  and  would  be  a  source  of  danger 
to  adjoining  property  of  tke  plaintiff,  it  was  decided  that  the  lessor 
was  liable  to  the  plaintiff  for  the  injuries  occasioned  thereby.121 

§  112.  Coke  ovens. —  The  maintenance  of  coke  ovens,  though 
a  lawful  trade,  or  business,  may  be  restrained  as  a  nuisance  where 
it  is  located  so  near  to  a  dwelling  house  as  to  cause  annoyances 

116.  Smiths  v.  McConathy,  11  Mo.  firming  2  Thomp.  &c,  231;  Walter 
517.  See,  as  to  smells,  §§  157-173,  v.  Selfe,  4  DeG.  &  S.  315,  20  L.  J. 
herein.  Ch.    433,    15    Jur.    41G;      Robert's    v. 

117.  O'Reilly  v.  Perkins,  22  R.  I.  Clarke,  18  L.  T.  49.  Compare  Huck- 
364,  48  Atl.  6.  enstine's  Appeal,  70   Pa.    St.    102,   10 

118.  Kirchgraber  v.  Lloyd,  59  Mo.  Am.  Rep.  GG9;  Hole  v.  Barlow,  4  C. 
App.  59;  State  ex  rel.  Horskottle  v.  B.  N.  S.  334,  4  Jur.  N.  S.  1019,  27 
St.  Louis  Board  of  Health,  16  Mo.  L.  J.  C.  P.  207,  6  W.  R.  G19.  See,  as 
App.  80.  See,  also,  as  to  brick  kilns  to  Smoke  irom  Brick  Kilns  a  nui- 
§  145,  herein.  sance,  §  145,  herein. 

119.  Fuselier  v.  Spalding,  2  La.  120.  Gravel  v.  Gervais,  M.  L.  R. 
Ann.  773;     Kirchgraber  v.  Lloyd,  59  7  S.  C.  326. 

Mo.  App.  59;      Campbell  v.  Seaman,  121.  Helwig  v.  Jordan,  53  Ind.  21, 

63  N.  Y.  568,  20  Am.  Rep.  567,  af-       21  Am.  Rep.  189. 

157 


§113 


Trade  oe  Business. 


which  materially  interfere  with  the  ordinary  physical  comfort  of 
human  existence.122  So,  smoke,  soot,  cinders  and  gas  which  are 
emitted  from  a  coke  oven  in  the  course  of  manufacturing  coke, 
which  cause  sickness  to  one  in  a  private  residence  and  her  family, 
which  injure  the  shrubbery  and  make  the  home  almost  untenant- 
able, constitute  a  private  nuisance  for  which  relief  by  injunction 
will  be  granted.123  In  a  case,  however,  in  Pennsylvania,  where  the 
plaintiff  brought  a  suit  to  restrain  the  operation  of  certain  coke 
ovens,  it  was  decided  that  though,  under  the  circumstances  of  the 
case  and  having  in  view  the  suitable  location  of  such  ovens,  they 
would  not  be  enjoined  at  equity,  yet  a  person  injured  thereby  was 
entitled  to  his  damages  at  law.124 

§  113.  Cotton  gin.— The  maintenance  of  a  cotton  gin  so  near 
a  residence  that  the  comfortable  enjoyment  thereof  is  interfered 
with  by  reason  of  the  noise,  dust  and  smoke  therefrom,  constitutes 
a  nuisance  which  will  be  enjoined.125  So,  the  employment,  by  the 
proprietor  of  a  ginning  plant,  of  machinery  which  separates  dust 
and  sand  from  cotton  by  means  of  a  blast  which  drives  the  par- 
ticles of  dust  and  sand  into  the  air,  and  causes  them  to  be  blown 
into  the  plaintiff's  dwelling  to  his  serious  annoyance  and  injury, 
has  been  held  an  invasion  of  his  right  to  enjoy  his  home  for  which 
the  proprietor  of  the  machinery  is  liable  to  an  action  for  dam- 
ages.126 The  court  said  in  thisi  case:  "  The  plaintiff  has  a  natural 
right  to  the  enjoyment  of  the  unpolluted  air;  and  if  the  defend- 
ant corporation,  by  contaminating  the  air  with  dust,  dirt  and  lint, 
thrown  into  the  air  by  artificial  means,  and  blown  into  her  dwell- 

122.  Herbert  v.  Rainey,  54  Fed.  tion  and  that  his  right  was  not  af- 
248.  fected   by   the   fact  that   he   did    not 

123.  McClung  v.  North  Bend  Coal  complain  of  the  gin  as  a  nuisance  un- 
&  Coke  Co.,  9  Ohio  C.  C.  259,  31  Ohio  til  about  two  years  after  it  was 
L.  J.  9.  See,  as  to  smoke,  §§  135-156,  erected,  where  it  appeared  that  the 
herein.  owner  did  nothing  to  induce,  and  was 

124.  Robb  v.  Carnegie,  145  Pa.  not  consulted  as  to,  its  erection  or 
324,  22  Atl.  649,  28  W.  N.  C.  339,  14  purchase.  As  to  smoke  see  §§  135- 
L.  R.  A.  329.  156,  herein.     As  to  noise  see  §§  174- 

125.  Faulkenburg   v.   Wells    (Tex.       191,  herein. 

Civ.  App.,  1902),  68  S.  W.  327,  hold-  126,  Pouder   v.    Quitman   Ginnery 

ing  that   the   owner,   though   not   re-        (Ga.,  1905),  492  S.  E.  746. 
siding  there,  could  maintain  the  ac- 

158 


Trade  or  Business.  §  114 

ing,  to  her  hurt  and  discomfort,  lias  interfered  with  her  enjoyment 
of  the  premises,  the  defendant  must  respond  to  her  in  damages."1 
And  a  license  from  the  municipal  authorities  to  maintain  a  steam 
cotton  press  though  entitled  to  high  consideration  upon  the  ques- 
tion of  whether  it  constitutes  a  nuisance  is  not  conclusive,  for  a 
license  may  be  abused  or  the  annoyance  so  great  that  they  cannot 
be  legalized.128  In  an  action  however  by  one  to  restrain  the  erection 
of  a  cotton  gin  an  injunction  will  not  be  granted  where  it  does  not 
clearly  appear  that  it  ist  not  reasonably  possible  to  carry  on  the 
business  in  such  a  manner  as  not  to  create  a  nuisance,  for  equity 
will  not  interfere  to  restrain  that  which  is  not  a  nuisance,  per  se, 
but  may  become  so  by  reason  of  circumstances,  such  a  result  being 
uncertain,  contingent,  or  indefinite.129  In  an  action  by  one  for  a 
private  nuisance  caused  by  the  erection  and  operation  of  a  steam 
cotton  press  it  has  been  held  sufficient  to  allege  increased  danger 
from  fire  and  liability  of  boilers  to  explode,  thereby  rendering  the 
plaintiffs  dwelling  unfit  for  habitation  and  impairing  the  value 
of  his  property  though  neither  an  actual  explosion  or  fire  are 
alleged.130 

§  114.  Electric  light  or  power  plant. —  Where  one  seeks  to  re- 
strain  the  construction  and  operation  of  an  electric  power  house 
on  the  ground  that  it  will  be  a  nuisance  when  completed  and  in 
operation,  the  injunction  is  properly  refused  where  the  evidence 
is  conflicting  upon  the  question  of  whether  the  plaintiff  will  sus- 
tain any  actual  injury.131  And  in  an  action  by  one  residing  in  a 
manufacturing  district  to  restrain  an  alleged  nuisance  caused 
by  the  operation  of  an  electric  light  plant  on  the  adjoining  prem- 
•ises  it  was  decided  that,  the  evidence  being  conflicting  as  to  the 
cause  and  extent  of  annoyance  complained  of,  and  it  appearing 
that  no  other  location  was  available  and  that  the  defendant  used 
the  best  machinery  and  was  guilty  of  no  negligence,  the  operation 
of  the  plant  would  not  be  enjoined  as  a  nuisance  since  it  would 

127.  Per  Evans,  J.  130.  Ryan  v.   Copes,   11   Rich.   L. 

128.  Ryan  v.    Copes,   11    Rich.   L.        (S.  C.)   73  Am.  Dec.  106. 

(S.  C.)  217,  73  Am.  Dec.  106.  131.  Powell  v.  Macon  &  I.   S.  R. 

129.  Rouse  v.  Martin,  75  Ala.  510,       Co.,  92  Ga.  209,  17  S.  E.  1027. 
61  Am.  Rep.  463. 

159 


§§  115,  116  Trade  or  Business. 

only  afford  slight  relief  to  the  plaintiff  and  would  cause  serious 
injury  to  both  the  defendant  and  the  public  and  the  plaintiff 
should  therefore  be  left  to  his  remedy  at  law.132 

§  115.  Exhibitions  and  Playhouses. — It  is  declared  in  an  early 
work  that  playhouses  are  not  nuisances  in  their  own  nature  "  but 
may  only  become  such  by  accident  as  where  they  draw  together 
great  numbers  of  coaches*  or  people  as  prove  generally  inconvenient 
to  the  places  adjacent,  or  where  they  pervert  their  original  institu- 
tion, by  recommending  vicious  and  loose  characters  under  beauti- 
ful colors  to  the  imitation  of  the  people,  and  make  a  jest  of  things 
commendable,  serious,  and  useful."133  But  in  an  English  case  in 
which  the  question  arose  as  to  the  right  of  a  party  to  an  injunction 
against  an  exhibition  company  for  an  alleged  nuisance  consisting 
of  the  assembling  of  a  large  number  of  cabs  t'o  take  persons  home 
from  the  exhibition,  the  court  refused  to  grant  an  injunction,  it 
appearing  that  the  cabs  were  assembled  under  the  direction  of  the 
police  authorities  and  the  court  held  that  the  nuisance  was  attribu- 
table not  to  the  defendants  but  to  the  action  of  the  police  author- 
ities.134 Where,  however,  a  public  show  in  the  nature  of  a  circus 
was  established  on  land  which  had  been  dedicated  to  a  town  for  the 
purpose  of  a  graveyard  and  which  was  used  as  such,  it  was  decided 
that  it  constituted  a  public  nuisance.135 

§  116.  Fat  and  bone  boiling  establishment. — A  fat  or  bone 
boiling  establishment  is  a  nuisance  where  it  infects  the  air  with 
noisome  smells  and  gases  injurious  to  health.136     To  justify  the 

132.  Riedeman  v.  Mt.  Morris  Elec-  sance  to  the  owner  of  such  property 
trie  Light  Co.,  56  App  Div.    (X.  Y.)       is  created. 

23,  67  X.  Y.  Supp.  391.  135.  Kansas    City    v.    Lemen,    57 

133.  Bacon's  Abr.   (7  Wilson's  Ed.       Fed.  905,  6  C.  C.  A.  627. 

1854)   224.  136.  Cropsey   v.   Murphy,    1    Hilt. 

134.  Germaine  v.  The  London  Ex-  (N.  Y.)  126.  See,  also,  Millhiser  v. 
hibitions,  Limited,  75  Law  T.  R.  101.  Willard,  96  Iowa,  327,  65  N.  W.  325; 
Compare  Barbee  v.  Penley,  L.  R.  Grand  Rapids  v.  Weiden,  97  Mich. 
(1893)  2  Ch.  447,  holding  that  where  82,  56  X.  W.  923;  North  Brunswick 
crowds  assemble  in  a  street  in  front  Township  Board  v.  Lederer,  52  X.  J. 
of  a  theatre  before  the  doors  open  so  Eq.  675;  Meigs  v.  Lister,  23  X.  J. 
that  access  to  and  egress  from  the  Eq.  199;  Smith  v.  Cummings,  2  Pars, 
abutting  property  is  prevented,  a  nui-  Eq.  Cas.    (Pa.)    92.     See  Canal  Melt- 

160 


Trade  or  Business.  §  116 

granting  of  an  injunction  the  injury  complained  of  must  be  a  sub- 
stantial one.137     Where  noxious  smells  and  gases  from  such  an  es- 
tablishment causa  a  depreciation  in  the  value  of  adjoining  prop- 
erty, an  action  therefor  will  be  against  the  proprietor  of  the  estab- 
lishment.138   So,  where  the  boiling  of  putrid  animal  matter  caused 
offensive  smells,  which  injured  the  rental  value  of  plaintiff's  prop- 
erty and  made  the  premises  nearly  unfit  for  habitation,  it  was  de- 
cided that  a  nuisance  was  thereby  created  and  that  the  injury  was 
one  for  which  a  remedy  would  be  granted.139     The  fact  that  the 
odors  are  not  unwholesome  is  not  a.  sufficient  reason  of  itself  for 
refusing  an  injunction.140     Nor  isi  the  fact  that  the  establishment 
is  used  for  the  purpose  of  disposing  of  the  refuse  matter  of  a  city, 
and  as  such  is  essential  to  its  welfare.    So,  in  an  action  to  restrain 
such  an  establishment  in  New  Jersey  it  was  decided  that  the  in- 
junction would  be  granted,  though  it  appeared  that  the  establish- 
ment was  used  for  the  purpose  of  disposing  of  refuse  matter  from 
the  city  of  New  York.141    But  the  fact  that  a  rendering  establish- 
ment is  maintained  in  a  city  in  violation  of  a  penal  statute  is  not 
a  sufficient  ground  for  enjoining  its  maintenance  where  it  does 
not  appear  that  it  constitutes  an  actionable  nuisance.142     The  bill, 
in  an  action  to  obtain  an,  injunction  against  a  business  of  this  kind, 
should  specially  state  the  injury  complained  of   and  contain  a 
special  prayer  for  the  relief  desired.143     In  a  suit  to  enjoin  the 
carrying  on  of  such  a  business  the  record  of  a  conviction  on  an  in- 
dictment for  a  nuisance  in  respect  to  that  business  is  prima,  facie 
evidence  on  behalf  of  the  plaintiff.144 

ing  Co.  v.  Columbia  Park  Co.,  99  111.       199.     That  smells  need  not  be  injuri- 
App.  215.  ous  to  health  to  be  a  nuisance  see  § 

137.  Tiede  v.   Schmeidt,   105  Wis.       138,  herein. 

470,  81   N.   W.  826;   Pennoyer  v.  Al-  141.  Meigs  v.  Lister,  23  N.  J.  Eq. 

len,  56  Wis.  510.     As  to  smells  see  §§  199. 

157-173,  herein.  142.  Tiede   v.    Schmeidt,    99    Wis. 

138.  Ruckman    v.    Green,    9    Hun  201,  74  N.  W.  798. 

(N.  Y.)    225.  143.  Smith  v.   Cummings,  2  Pars. 

139.  Francis  v.  Schoellkopf,  53  N.       Eq.  Cas.  (Pa.)  92. 

Y.  152.  144.  Peck  v.  Elder,  5  N.  Y.  Super. 

140.  Meigs  v.  Lister,  23  N.  J.  Eq.       Ct.  126. 


161 


§§  117,  118  Trade  or  Business. 

§  117.  Ferries. —  Where  one  has  a  right  by  prescription  to 
maintain  a  ferry  and  another  erects  a  ferry  so  near  it  as  to  draw 
away  its  custom,  it  has  been  held  a  nuisance  for  which  the  injured 
party  has  his  action.145  And  the  same  rule  has  been  held  to  apply 
to  an  exclusive  privilege  created  by  statute  to  maintain  a  ferry  or 
bridge,  in  which  case  the  erection  of  another  bridge  so  near  it  as  to 
create  competition  to  the  franchise  was  declared  a  nuisance  and  an 
injunction  was  granted  preventing  the  carrying  on  of  the  business 
in  competition  with  the  statutory  franchise,  and  protecting  such 
franchise.148 

§  118.  Fertilizer  factories. — A  nuisance  per  se  has  been  held 
to  exist  in  the  case  of  the  maintenance,  in  a  populous  neighbor- 
hood, of  an  establishment  for  the  manufacture  of  fertilizer  from 
fish.147  And  it  has  been  decided  that  the  manufacture  of  a.  fer- 
tilizer from  the  carcasses  of  dead  animals  and  from  other  refuse 
may  be  perpetually  enjoined  where  it  is  conducted  in  a  populous 
farming  district,  and  depreciates  the  value  of  property  and  affects 
those  residing  in  the  neighborhood  with  nausea  and  vomiting.148 
In  a  case  in  Maryland,  which  was  an  action  for  a  nui- 
sance by  the  operation  of  a  fertilizer  factory  from  which 
it  was  alleged  that  noxious  gases  escaped,  causing  great 
physical  discomfort  to  the  plaintiff  and  his  tenants,  and 
also  material  injury  to  the  property,  it  was  said  by 
the  court :  "  No  principle  is  better  settled  than  that  where  a 
trade  or  business  is  carried  on  in  such  a  manner  as  to  interfere 
with  the  reasonable  and  comfortable  enjoyment  by  another  of  his 
property,  or  which  occasions  material  injury  to  the  property  itself, 
a  wrong  is  done  to  the  neighboring  owner,  for  which  an  action  will 
lie.  And  this,  too,  without  regard  to  the  locality  where  such  busi- 
ness is  carried  on;  and  this,  too,  although  the  business  may  be  a 
lawful  business,  and  one  useful  to  the  public,  and  although  the 
best  and  most  approved  appliances  and  methods  may  be  used  in 

145.  Ogden  v.  Gibbons,  4  Johns.  147.  State  v.  Luce,  9  Houst. 
Ch.    (N.   Y.)    150,   160.       As   to  pre-        (Del.)   396,  32  Atl.  1076. 

scriptive  right  see  §§  50-58,  herein.  148.  Evans    v.    Reading    Chemical 

146.  Newburgh,  &c,  T.  R.  Co.  v.       F.  Co.,  160  Pa.  209,  28  Atl.  702. 
Miller,   5  Johns.  Ch.    (N.  Y.)    101,  9 

Am.  Dec.  214. 

162 


Trade  or  Business.  §  118 

the  conduct  and  management  of  the  business.  .     .     We .cannot 

agree  with  the  appellant  that  the  court  ought  to  have  directed  the 
iSry  to  find  whether  the  place  where  this  factory  was  located  was  a 
convenient  and  proper  place  for  the  carrying  on  of  the  appellant  s 
business,  and  whether  such  a  use  of  his  property  was  a ^asonab  e 
use,  and  if  they  should  so  find  the  verdict  must  be  for  the  defend- 
ant     It  may  be  convenient  to  the  defendant,  and  it  may  be  con- 
venient to  the  public,  but  in  the  eye  of  the  law,  no  place  can  be 
convenient  for  the  carrying  on  of  a  business  which  is  a  nuisance, 
and  which  causes  substantial  injury  to  the  property  of  another. 
Nor  can  any  use  of  one's  own  land  be  said  to  be  a  reasonable  use 
which  deprives  an  adjoining  owner  of  the  lawful  use  and  enjoy- 
ment of  his  property."149    And  it  has  been  decided  that  a  party  will 
not  be  deprived  of  his  right  to  an  injunction  restraining  the  carry- 
ing on  of  a  fertilizer  business  by  acts  on  his  part  or  conversations 
between  him  and  the  defendant  which  in  no  way  influenced  the 
latter  in  the  erection  or  conduct,  of  the  establishment.        Where, 
however,  the  evidence  is  conflicting,  and  leaves  the  question  in 
doubt  as  to  whether  such  a  factory  constitutes  a  nuisance  and  the 
complainant  has  resided  for  years  in  the  same  place  with  knowl- 
edge of  improvements  by  defendants,  and  has  made  no  objection 
to  "the  establishment,  and  if  appears  that  the  injury  to  the  com- 
plainant is  slight,  if  any,  and  that  the  defendant  has  a  large  capi- 
tal invested  in  his  business,  which  will  be  ruined  if  the  injunction 
asked  for  is  granted,  the  court  will  refuse  to  grant  it.101     So,  in  a 

149.  Susquehanna  Fertilizer  Co.  v.  doubtful    and    has    not    been    estab- 

Malone,  73  Md.  268,  276,  20  Atl.  900,  lished  at  law,  this  form  of  relief  will 

25  Am'  St    R    595,  9  L.  R.  A.  737,  be   withheld.       In    other    words,    the 

per  Robinson,  J.  question  of  nuisance  or  no  nuisance 

150  Barkan  v.  Knecht,   10  Wkly.  must,  where  the  evidence   is  conflict- 
Law  Bui.    (Ohio)    342.  ing  and  a  doubt  exists,  be  first  tried 

151  Tuttle  v.  Church,  53  Fed.  by  a  jury.  .  .  .  Again,  no  relief 
422  The  court  said  in  this  case:  will  be  granted  in  equity  where  a 
"  It  is  true  that  a  court  of  equity  has  party  has  been  guilty  of  great  laches, 
the  power  to  grant  an  injunction  be-  but  he  will  be  left  to  pursue  his 
fore  a  trial  at  law,  to  prevent  irre-  remedy  at  law.  Where  relief  is  sought 
parable  injury,  multiplicity  of  suits,  against  a  nuisance,  due  diligence 
or  vexatious  litigation,  where  the  must  be  used  in  the  assertion  of 
court  has  no  doubt  as  to  the  right  of  rights  which  are  claimed,  and  equity 
the  plaintiff,  but  where  the  right  is  will  not  interfere  when  a  party  haa 

163 


§  119  Trade  ob  Ri 

ntr  to  obtain  an  injunction  against  die  carrying  on  of  audi 
a  business,  on  the  ground  that  on  I  of  the  noxious  odors  the 

complain;  ipelled  to  keep  tl  and  windows  of  his 

lling  closed,  and  that  it  injured  his  crops  and  trees,  it  was 
decided  that  .iminary  injunction  would  not  be  granted,  it 

appearing  that  the  loss  to  fruit  and  crops  for  on  had  I 

aires  lined,  that  the  discomfort  and   annoyance  had   been 

submitted  to  for  several  mid  be  a  hard-hip  to 

fendant  at  the  timet,  and  that  the  danger  of 

future  ]  imminent  that  complainant  wool 

irrep  a  to  proceed  to  final  decree  oil 

the  hill,  answer  and  proof 

119.  Foundries.— A   brass   foundry  and   machinery   incident 
prima  facie  i  ad  a  p.; 

plains  of  them  m  ge  and  prove  that  ich  by  re 

•  f  d  or  the  improper  and  negligent  mai 

cL     If  injurious   effects   con 
of  may  be  p  bating  or  enj  s   the  works  or 

operation  th<  ises  of  the  8] 

dts  should  And  a  proposed  fo  not  being 

a  m  i  been  dec  .  not  be  enjoined 

•     be  a  n  ni  ,  w.1** 

allowed  the  def< 

the  erection   of  ':..-.   obn  roc-  ...  •*  ia 

^■reat  expense   and   without  doubtful,  the  ease  resolves  '> 

complaint.     .     .     .     A   delay  of  three  a  quests 

more   has    been    ordinarily  wh< •• 

held  to   be  such   laches  as  will   pre-  injured     by     the     in;  . 
elude  a  party  from  this  form  o  .ted,  or  t 

.     .  A  moti  ■-.  injunction  withheld."     Per  Colt,   C.   ■/ 

:dressed  to  the  sound  di  152  and    Will- 
court,  guided  by  certain  estab-  ian. 

-.   means  that  the  153.  7   Cal. 

Dsider  all   the  circum-  134,  26  J' 

I  each  case  before  it  will  ex-  nuisance  :ed   see    §    90, 

-rdinary     rem' 
ng     the     considerations      whi  154    Vinegaa  l    Allen,  44  111.  App. 

should   influence   a  -  553. 

'.he 


Tkade  ok  Busi>    se  120-122 

L20i  Gas  works. —  Where  gas  works  cause  a  special  injury 
to  another  they  constitute  a  nuisance  for  which  an  action  may  be 
maintained  by  the  one  injured.1'0  So  where  a  person's  wells  are 
polluted  by  the  percolation  of  refuse  from  gas  works  maintained 
on  adjoining  premises,  an  action  for  damages  will  lie  for  such 
injury. bb  And  a  gas  company  cannot  escape  liability  for  injuries 
caused  by  the  operation  of  its  worts  by  the  fact  that  it  has  a. 
charter  from  the  State  to  carry  on  the  business,  or  that  it  uses 
improved  appliances  so  as  to  cause  as  little  inconvenience  as  pos- 
sible, or  that  it  exercises  a  high  degree  of  care.15'  The  possibility 
of  an  injury  from  the  explosion  of  gas  works  is  not,  however,  a 
sufficient  ground  for  the  granting  of  an  injunction  restraining 
their  erection,  where  the  chances  of  an  explosion  are  slight  and 
the  premises  of  the  complainant  are  located  at  such  a  distance 
that,  if  one  should  occur,  they  would  not  be  seriously  endangered. laS 

£  121. — Ice  house. — The  use  of  a  building  for  the  storage  of 

::.ay  constitute  a  nuisance,  as  where  it  was  maintained  so  near 

hi  the  dwelling  of  another  that  the  dampness  therefrom  struck 

through   the   walls  of  the  dwelling,   injured  the   structure,   and 

mac-.  .    -      .nsafe  and  unfit  for  habitation  as  to  diminish  its  rental 

value,  in  which  case  it  was  held  that  damages  were  not  reeover- 

for  a  permanent  depreciation  in  value  of  the  dwelling,  but  for 

depreciation  in  rental  value  to  time  of  trial  and  for  the  cost  of 

'  -  house  and  putting  it  in  a  condition  to  prevent 

future  injur- 

".22.   Laundry. — A  steam  laundry  is  not  a  nuisance  per  se. 

it  will  not  be  restrained  as  a  nuisance  because  of  a  slight  noise 

affecting  other  occupants  of  a  building,  where  they 

■     neither  injured  nor  interfered  with  in  their  business,  nor  sus- 

155    Oarhart   t.   Auburn   Gaslight  55  X.  Y.  Supp.   192.     Where  author- 

2S  Biirb.    [K,  Y.)  297.  ized  by  statu:      -  "•"".  herein. 

156.  Pensacola  Gas  Co.  v.  PebleT.  15S.  Cleveland    t.    Citizens'    Gas- 

-       -93.  -  Eq.  201. 

157   ?. .-.senheimer  t.  Standard  Gas-  159.  Barrick      v.      Schifferdecker. 

light    Co..   36   App.   Dir.    (N.   Y.i    1.  123  X.  Y.  52,  -  365.  S3  X.  Y. 

-    a  iss 

165 


§§  123,  124  Trade  ok  Business. 

tain  any  injury  to  their  health  or  that  of  their  employees.160  But 
where  a  Chinese  laundry,  in  the  basement  of  a  building,  injured 
ihe  business  of  the  occupant  of  the  floor  above  it  was  decided  that 
an  injunction  would  be  granted  restraining  the  carrying  on  of  the 
laundry  in  such  a  manner  as  to  cause  the  injury  complained  of, 
the  effect  of  the  injunction  being  to  allow  the  defendants  to  carry 
on  their  business  at  the  place  occupied  by  them  if  they  could  so 
alter  and  change  their  mode  of  conducting  it  as  not  to  annoy  and 
injure  the  plaintiff.161 

§  123.  Merry-go-round. — The  running  of  a  merry-go-round 
may  or  may  not  constitute  a  nuisance,  dependent  upon  the  place, 
the  time,  the  circumstances,  the  manner  in  which  it  is  conducted, 
and  the  effects  produced.  If  it  materially  interferes  with  a  per- 
son of  ordinary  sensibility  in  his  ordinary  physical  comfort  it 
will,  dependent  upon  the  surroundings,  constitute  a  nuisance  which 
may  be  enjoined.  So  it  has  been  decided  that  a  town  council 
may  abate  as  a  nuisance  a  merry-go-round  run  by  steam,  and 
which  is  accompanied  by  a  band  and  the  blowing  of  a  whistle  at 
frequent  intervals,  where  it  is  maintained  in  a  neighborhood  sur- 
rounded by  dwellings  and  is  run  until  ten  and  half-past  ten  at 
night.162 

§  124.  Quarries. — Unless  a  party  can  show  a  right,  either  in 
the  nature  of  a  presumed  grant  or  easement  or  in  some  other 
mode,  to  use  his  property  in  a  particular  way,  such  as  for  the 
working  of  quarries,  he  cannot  so  use  it  if  it  occasions  injury 
to  his  neighbors  in  the  quiet  enjoyment  of  their  legal  rights  and 
privileges.  And  it  is  no  defense  to  an  action  for  an  injury  there- 
from that  he  used  proper  precautions  to  prevent  the  injuries  com- 
plained of.163  So  in  an  action  against  the  lessee  of  a  stone  quarry 
by  one  dwelling  near  it,  an  injunction  was  granted  restraining  the 
defendant  from  so  operating  the  quarry  that  pieces  of  rock  were 

160.  Miller  v.  Schindle,  15  Pa.  Co.  162.  Davis  v.  Davis,  40  W.  Va. 
Ct.  R.  341.  464,  21  S.  E.  906. 

161.  Warwick  v.  Wah  Lee  &  Co.,  163.  Scott  v.  Bay,  3  Md.  431.  See 
10  Phila.   (Pa.)    160.  §§  89,  92,  94,  herein. 

166 


Teade  or  Business. 


125,  126 


constantly  thrown  into  the  public  road  and  upon  the  plaintiff's 
premises  to  the  great  danger  of  the  plaintiff  and  his  family.164 

§  125.  Shooting  gallery.— A  shooting  gallery  erected  in  a 
proper  place  and  conducted  in  a  proper  manner  is  not  a  public 
nuisance  and  is  to  be  considered  as  a  lawful  business,  in  such  a 
case,  in  the  absence  of  a  statute  declaring  it  a  nuiance*.165 

§  126.  Slaughter  house — Prima  facie  a  nuisance. — Slaughter 
houses  have  been  declared  to  be  within  the  class  recognized  by  the 
law  as  in  their  nature  nuisances.166  They  were  originally  regarded 
when  located  in  a  city  or  town  as  nuisances  per  se,167  and  have 
been  held  to  be  such  in  somewhat  recent  cases.168  According  to  the 
weight  of  authority,  however,  slaughter  houses  are  now  regarded 
as  prima  fade  nuisances.169     And  a  slaughter  house  being  only 


164.  Saven  v.  Johnson,  4  Pa.  Co. 
Ct.  R.  360,  3  Del.  Co.  R.  323. 

165.  Hubbell  v.  Viroqua,  67  Wis. 
343. 

166.  Harmison  v.  Lewiston,  46  111. 
App.  164. 

167.  Punier  v.  Pendleton,  75  Va. 
516,  40  Am.  Rep.  738. 

168.  Green  v.  Lake,  54  Miss.  540, 
28  Am.  Rep.  378;  Attorney-General 
v.  Steward,  20  N.  J.  Eq.  415;  Com- 
monwealth v.  Wescott,  4  Pa.  C.  P.  58. 

169.  Reichert  v.  Geers,  98  Ind.  73, 
49  Am.  Rep.  736;  Bushnell  v.  Robe- 
son, 62  Iowa,  540,  17  N.  W.  888; 
Seifried  v.  Hays,  81  Ky.  377,  381,  50 
Am.  Rep.  167;  Woodyear  v.  Schaefer, 
57  Md.  1,  40  Am.  Rep.  419;  Brady 
v.  Weeks,  3  Barb.  (N.  Y.)  157;  Cat- 
lin  v.  Valentine,  9  Paige  Ch.  (N.  Y.) 
575,  38  Am.  Dec.  567 ;  Peck  v.  Elder, 
5  N.  Y.  Super.  Ct.  126;  Dubois  v. 
Budlong,  15  App.  Prac.  (N.  Y.)  445; 
Pumer  v.  Pendleton,  75  Va.  516,  40 
Am.  Rep.  738,  holding,  also,  that 
when  a  slaughter  house  is  complained 
of  the  burden   is   on  the   one  main- 


taining it  to  show  that  it  is  not  a 
nuisance. 

"  Butchering  cattle  is  a  legitimate 
business,  and  must  necessarily  be  car- 
ried on  in  the  vicinity  of  each  city 
or  town,  the  inhabitants  of  which 
need  to  be  supplied  with  meat.  And, 
consequently,  a  pen  in  which  to  keep 
the  live  cattle,  and  a  house  in  which 
to  slaughter  them  is  not  per  se  a 
public  or  private  nuisance,  unless  es- 
tablished so  near  the  center  of  popu- 
lation or  to  a  private  dwelling  place 
as  to  necessarily  and  unavoidably 
hurt  and  annoy  the  public,  or  invade 
and  do  damage  to  the  private  vested 
right  of  an  individual.  But  when 
such  an  establishment  is  located  a 
reasonable  distance  from  the  center 
of  population  and  from  the  dwelling 
places  of  individuals,  it  can  be  re- 
garded and  treated  as  a  nuisance, 
public  or  private,  as  the  case  may  be, 
only  when  the  business  is  conducted 
in  such  negligent  or  reckless  manner 
as  to  become  offensive  or  hurtful  to 
the  public  and  individuals."       Beck- 


) 


167 


§  127  Trade  or  Business. 

prima  facie  a  nuisance  it  may  be  shown  that  it  can  be  so  conducted 
and  carried  on,  even  in  a  densely  populated  part  of  a  city,  as  not 
to  endanger  or  affect  the  health  or  interfere  with  the  comfort  of 
the  neighboring  inhabitants ;  and  when  this  is  shown  the  presump- 
tion is  removed  and  the  business  is  not  a  nuisance.1'0 

§  127-  Slaughter  house — Nuisance  by  location  or  operation. — 

A  slaughter  house  may  become  a  nuisance  by  the  manner  in  which 
it  is  conducted.171  So  it  may  be  a  nuisance  if  ill  managed  or  neg- 
lected, though  it  may  be  in  no  sense  in  the  comp'act  part  of  a 
town.172  And  a  slaughter  house  which,  by  reason  o'f  its  location, 
or  the  manner  in  which  it  is  conducted,  affects  a-  person's  health, 
or  renders  his  enjoyment  of  life  physically  uncomfortable,  or 
materially  injures  his  property,  will  constitute  a  nuisance  which 
may  be  enjoined.173  And  individuals  suffering  special  injuries 
from  such  a  nuisance  may  unite  in  asking  for  an  injunction  though 
they  separately  own  premises  on  which  they  reside  and  which  are 
affected.174  If  the  nuisance  complained  of  is  liable  to  produce 
irreparable  injury  before  a  trial  at  law  can  be  had  the  business 
may  be  enjoined  before  it  has  been  established  a  nuisance  at  law.175 
The  court  will  not,  however,  enjoin  the  operation  of  a  slaughter 
house  where  it  appears  that  it  can  be  so  conducted  as  not  to  be  a 
nuisance,  and  upon  proof  of  such  fact  the  business  should  be 
allowed  to  continue,  and  the  court  should,  by  its  decree,  determine 
the  conditions  on  which  it  may  be  conducted.176     And  the  erection 

ham  v.   Brown,   19  Ky.  Law  R.  519,  some  business  or  establishment,  and 

520,  40  S.  W.  684,  per  Lewis,  C.  J.  no  argument  is  necessary  to  establish 

170.  Dubois   v.   Budlong,   15  Abb.  this   fact.     Huesing   v.   Rock    Island, 
Prac.    (N.  Y.)   445.  128   111.  465,  475,  21   N.  E.  558,   15 

171.  Cooper  v.   Schultz,   32   How.  Am.  St.  R.  129. 

Prac.    (N.  Y.)    107,  135.  174.  Bushnell      v.      Robeson,      62 

172.  State   v.    Wilson,    43    N.    H.  Iowa,  540,    17   N.   W.   888;   Brady  v. 
415,  82  Am.  Dec.  163.  Weeks,  3  Barb.    (N.  Y.)    157. 

173.  Babcock  v.  New  Jersey  175.  Minke  v.  Hofeman,  87  I1L 
Stockyard  Co.,  20  N.  J.  Eq.  296;  At-  450,  29  Am.  Rep.  63. 
torney-General  v.  Steward,  20  N.  J.  176.  Bushnell  v.  Robeson.  62 
Eq.  415;  Pumer  v.  Pendleton,  75  Va.  Iowa,  540,  17  N.  W.  888.  See,  alsof 
516,  40  Am.  Rep.  738.  A  slaughter  Minke  v.  Hofeman,  87  111.  450,  28 
house  within  a  city  is  an  unwhole-  Am.  Rep.  63. 

168 


Trade  or  Business.  §  128 

of  a  slaughter  house  and  abattoir  will  not  be  enjoined  where  it 
appears  that  the  latest  and  most  approved  appliances  are  to  be 
used  and  it  is  not  shown  that  the  proposed  business  will  be  a  nui- 
sance.177 Nor  will  such  a  business  be  enjoined  merely  because  it 
depreciates  the  value  of  property  in  the  neighborhood,  as  one  who 
sustains  an  injury  of  this  character  has  a  sufficient  remedy  at 
law.178  In  an  action  by  one  who  claims  to  have  been  injured  in 
the  use  and  enjoyment  of  his  dwelling  by  the  smells  which  arise 
from  a  slaughter  house,  evidence  of  the  fact  that  one  who  lives 
at  a  greater  distance  from  such  slaughter  house  than  the  plaintiff 
has  been  annoyed  in  the  enjoyment  of  his  dwelling  by  the  same 
cause  is  admissible  for  the  purpose  of  showing  the  existence  of 
the  nuisance  complained  of.179 

§  128.  Where  slaughter  house  originally  remote  from  habita- 
tion— Subsequent  development  of  locality. — The  fact  that  a 
slaughter  house  was  originally  located  remote  from  habitations  is 
no  defense  where  it  subsequently  becomes  a  nuisance  by  reason 
of  the  "development  of  such  locality  by  the  laying  out  of  roads 
and  the  erection  of  buildings  and  dwellings.180  And  a  person  is 
not  protected  from  indictment  and  conviction  for  a  nuisance  con- 
sisting of  a  slaughter  house  maintained  by  him,  by  the  fact  that 
at  the  time  he  erected  such  nuisance  other  human  habitations 
were  so  far  removed  from  it  as  not  to  be  annoyed  or  disturbed 
thereby.181  So  it  was  said  in  Brady  v.  Weeks:182  "  When  the 
slaughter  house  was  erected,  it  was  remote  from  the  thickly  settled 
parts  of  the  city ;  but  it  seems  that  the  city  has  now  grown  up  to 
it,  and  that  the  necessities  of  the  population  require  the  occupa- 
tion of  the  lots  in  the  immediate  vicinity  of  the  slaughter  house 

177.  Sellers  v.  Pennsylvania  R.  Gray  (Mass.),  473;  Brady  v.  Weeks, 
Co.,  10  Phila.  (Pa.)  319.  See,  also,  3  Barb.  (N.  Y.)  157;  Smith  v.  Cum- 
Attorney-General  v.  Steward,  20  N.  mings,  2  Pars.  Eq.  Cas.  (S.  C.)  92. 
J.  Eq.  415.  Compare     Ballentine     v.     Webb,     84 

178.  Ballentine  v.  Webb,  84  Mich.  Mich.  38,  47  N.  W.  485. 

38,  47  N.  W.  485.  181.  Taylor  v.  People,  6  Parker's 

179.  Fay  v.  Whitman,  100  Mass.       Cr.  R.   (N.  Y.)   347. 

76.  182.  3  Barb.  (N.  Y.)  157. 

180.  Commonwealth   v.    Upton,    6 

169 


§§  129,  130  Trade  or  Business. 

for  dwelllings.  When  the  slaughter  house  was  erected  it  incom- 
moded no  one;  but  now  it  interferes  with  the  enjoyment  of  life 
and  property,  and  tends  to  deprive  the  plaintiffs  of  the  use  and 
benefit  of  their  dwellings.  There  can  be  no  real  necessity  for  con- 
ducting such  an  offensive  business  as  slaughtering  cattle  in  this 
part  of  the  city,  which  is  now  occupied  by  valuable  and  costly 
buildings.  As  the  city  extends  such  nuisances  should  be  removed 
to  the  vacant  ground  beyond  the  immediate  neighborhood  of  the 
residences  of  the  citizens.  This,  public  policy,  as  well  as  the 
health  and  comfort  of  the  population  of  the  city,  demand."  183  But 
in  an  early  English  case,  where  a  person  had  been  indicted  for 
maintaining  a  public  nuisance  consisting  of  a  slaughter  house,  it 
was  said  by  the  court :  "If  a  certain  noxious  trade  is  already 
established  in  a  place  remote  from  habitations  and  public  roads, 
and  persons  afterwards  come  and  build  houses  within  the  reach 
of  its  noxious  effects ;  or  if  a  public  road  be  made  so  near  to  it 
that  the  carrying  on  of  the  trade  becomes  a  nuisance  to  the  persons 
using  the  road,  in  those  cases  the  party  would  be  entitled  to  con- 
tinue his  trade,  because  his  trade  was  legal  before  the  erection  of 
thei  houses  in  the  one  case,  and  the  making  of  the  road  in  the 
other."  184 

§  129.  Slaughter  house  a  nuisance — Health  need  not  be  en- 
dangered.— It  is  not  necessary  to  render  a  slaughter  house  a 
nuisance  that  it  should  endanger  the  health  of  the  neighborhood, 
it  being  sufficient  if  it  produces  that  which  is  offensive  to  the 
senses  and  which  renders  the  enjoyment  of  life  and  property  un- 
comfortable.185 

§  130.  Slaughter  house  a  nuisance — Defense  to  indictment  for. 

— On  a  prosecution  for  maintaining  a  slaughter  house  which  is 
alleged  to  be  a  public  nuisance  it  is  no  defense  that  the  smells 
therefrom  are  blended  with  other  similar  smells  from  nuisances 

183.  Per  Paige,  J.  185.  Catlin  v.  Valentine,  9  Paige'a 

184.  Rex  v.  Cross,  2  Car.  &  P.  Ch.  (N.  Y.)  575,  38  Am.  Dec.  567. 
484,  per  Abbott,  C.  J.  See  §  87,  herein. 


170 


Tkade  on  Business.  §§  131-133 

of  a  like  character.186  And  it  is  no  defense  to  a  prosecution  for 
maintaining  a  nuisance,  consisting  of  a  slaughter  house  that  it  is 
kept  in  as  good  order  and  as  cleanly  as  such  houses  can  be  kept,  for 
the  best  conducted  slaughter  house  may  be  a  public  nuisance  if 
in  the  wrong  place.187 

§  131.  Slaughter  house— Defense  to  action  to  enjoin.— It  is 
no  defense  to  an  action  to  enjoin  the  maintenance  of  a  slaughter 
house  on  the  ground  that  it  constitutes  a  public  nuisance,  that 
there  are  other  slaughter  houses  in  the  neighborhood  similar  to 
that  complained  of,  against  which  no  proceedings  have  been 
taken.18S  And  the  fact  that  one  has  been  indicted,  tried  and  ac- 
quitted for  maintaining  such  a  nuisance,  will  not  deprive  a  court 
of  jurisdiction  in  an  action  to  enjoin  the  carrying  on  of  such  a 
business  so  as  to  constitute  a  private  nuisance  near  the  person's 
dwelling.189 

§  132.  Smelting  works.—  The  operation  of  works  for  smelting 
lead  may  be  enjoined  when  they  are  so  located  as  to  emit  noxious 
and  poisonous  gases,  fumes  and  vapors,  causing  offense  and  in- 
jury to  residents  on  an  adjoining  farm  and  poisoning  and  destroy- 
ing soil  and  vegetation  to  the  injury  of  animals  on  the  farm.1 
And  where  the  fumes  and  smoke  from  the  operation  of  a  smelter 
destroyed  vegetation  upon  the  premises  of  another  it  was  held  to 
constitute  a  nuisance  for  which  damages  were  recoverable.191 

§  133.  Steel  furnaces. — In  a  recent  case  in  Pennsylvania  an 
action  was  brought  to  restrain  a  steel  company  located  in  Pitts- 
burg from  so  operating  its  blast  furnaces  as  to  permit  the  escape 
therefrom  of  dust  in  such  a  quantity  as  to  injure  the  houses  of  the 
plaintiff.      It  appeared  that  the  houses,  though  in  a  residential  sec- 

186.  Dennis  v.  State,  91  Ind.  291.  190.  Appeal       of         Pennsylvania 

187.  Moses  v.  The  State,  58  Ind.  Lead  Co.,  96  Pa.  116,  42  Am.  Rep. 
185.  187.  534. 

188.  Woodyear  v.  Schaefer,  57  191.  Stenett  v.  Northport  Min.  & 
Md.  1,  40  Am.  Rep.  419.  Sm.  Co.,  30  Wash.  164,  70  Pac.  266. 

189.  Minke    v.    Hofeman,    87    111. 
450,  29  Am.  Rep.  63. 

171 


§  133  Tkade  or  Business. 

tion,  were  located  near  a  manufacturing  district  and  within  reach, 
of  the  dust  and  smoke  from  the  plants.  The  plaintiff  had  sub- 
mitted for  a  number  of  years  to  the  general  discomforts  and  an- 
noyances without  complaint,  and  were  willing  to  continue  to  sub- 
mit to  them  in  common  with  other  citizens.  The  defendant,  how- 
ever, had  some  time  prior  to  this  action  torn  down  three  furnaces 
and  erected  four  new  ones  of  immense  size  and  several  times  the 
capacity  of  the  old.  It  was  claimed  by  the  plaintiff  that,  in 
using  fine  Mesaba  ore  dust,  without  so  operating  the  furnaces  as 
to  prevent  the  escape  of  dust  from  "  slips,"  causing  admitted 
devastation,  there  was  a  practical  confiscation  of  their  properties, 
and  this  action  was  brought  to  protect  them  in  the  enjoyment  of 
their  private  property  subject  to  the  general  conditions  of  the  city 
in  which  they  lived.  The  facts  were  not  in  dispute  and  no  find- 
ing of  fact  was  assigned  as  error  by  the  defendants.  It  was  de- 
cided by  the  court  that  the  plaintiff  was  entitled  to  an  injunction 
restraining  the  defendants  from  so  operating  its  furnaces  as  to 
cause  to  be  emitted  therefrom  clouds  of  ore  dust,  working  and 
causing  the  injury  to  the  property  of  the  plaintiff,  as  in  the  bill 
described  and  found  by  the  court  below.192  The  following  quo- 
tation from  the  court  is  of  value  in  this  connection :  "  If  this 
bill  were  for  relief  from  personal  inconvenience  and  interference 
with  the  appellant's  free  and  full  enjoyment  of  their  property,  due 
merely  to  the  conditions  of  smoke  and  dust  that  have 
existed  for  years,  and  will  exist  as  long  as  the  city 
itself  continues  to  be  the  great  steel  and  iron  manu- 
facturing center,  it  would  be  promptly  dismissed.  Ol 
the  smoke  and  dust  now  coming  from  all  the  other  surrounding 
mills  and  furnaces  no  complaint  is  made,  and  of  what  used  to 
come  from  the  old  furnaces  of  the  appellee  the  appellants  made 
no  complaint,  and  would  not  be  complaining  now  but  for  the 
changed  conditions  brought  about  by  the  appellee.  The  court 
below,  though  requested  by  it,  refused  to  find  that  '  the  matters 
complained  of  by  the  plaintiffs  are  only  such  discomforts  and  in- 

192.  Sullivan  v.  Jones  &  Laugh- 
lin  Steel  Co.  (Pa.,  1904),  57  Atl. 
1065,  three  judges  dissenting. 

172 


Trade  or  Business.  §  133 

conveniences  as  always  are  and  have  been  incident  to  and  conse 
quent  upon  close  proximity  to  an  exclusively  manufacturing  sec- 
tion of  a  manufacturing  city."  The  changed  conditions  brought 
about  by  the  appellee  have  not  resulted  from  development  and 
natural  use  and  enjoyment  of  its  own  property,  as  was  the  situ- 
ation in  Pennsylvania  Coal  Co.  v.  Sanderson,193  the  doctrine  of 
which  case  has  never  been  and  never  ought  to  be  extended  beyond 
the  limitations  put  upon  it  by  its  own  facts.  There  it  was  said 
of  the  coal  company :  '  They  have  brought  nothing  on  to  the  land 
artificially.  The  water  as  it  is  poured  into  Meadow  Brook  is 
the  water  which  the  mine  naturally  discharges ;  its  impurity 
arises  from  natural,  not  artificial  causes.  The  mine  cannot,  of 
course,  be  operated  elsewhere  than  where  the  coal  is  naturally 
found,  and  the  discharge  is  a  necessary  incident  to  the  mining 
of  it.'  Here  the  furnaces  were  artificially  brought  by  appellee 
onto  its  lands  by  being  built  there  by  it,  and  the  Mesaba  ore  con- 
verted by  the  furnaces  into  iron  is  also  artificially  brought  there 
by  it.  It  knew  when  about  to  erect  these  new  furnaces  of  im- 
mense size  and  great  capacity,  that  in  their  operation  the  rights 
of  others,  among  them  those  of  the  appellants,  to  the  use  and  en- 
joyment of  their  property,  situated  in  what,  for  years,  had  been 
a  portion  of  the  city  given  up  to  residences,  were  not  to  be  utterly 
disregarded;  and  when  it  began  to  use  the  fine  ore  dust  which 
has  manifestly  caused  the  serious  injury  to  the  property  of  the 
appellants,  it  was  again  bound  to  consider  the  effect  of  the  use  of 
this  ore  upon  the  nearby  residences.  By  this  we  are  not  to  be 
understood  as  saying,  or  even  intimating,  that  the  large  furnaces 
could  not  be  erected  and  operated,  that  Mesaba  ore  cannot  be  used, 
or  that  if,  in  the  operation  of  the  furnaces,  and  the  use  of  the  fine 
ore,  the  discomfort  and  annoyance  of  the  appellants  had  simply 
been  increased  in  degree,  they  would  be  entitled  to  equitable  re- 
lief. When,  however,  as  the  result  of  the  improvements  volun- 
tarily made  by  the  appellee,  and  its  use  of  a  new  ore,  the  annoy- 
ance, inconvenience  and  injury  to  which  the  appellants  are  now 

193.  113  Pa,   126,  6   Atl.   453.  57 
Am.  Rep.  445. 


173 


r   £34  Trade  or  Business. 


subjected,  do  not  differ  merely  in  degree  from  those  to  which  they 
formerly  submitted  as  part  of  their  lot  as  citizens  of  the  '  Iron 
City'  but  in  kind,  and  practical  destruction  and  confiscation  of 
their  properties  confront  them,  a  very  different  situation  is  pre- 
sented to  a  chancellor  from  those  cases  in  which  the  rule  is  laid 
down  that  people  who  live  in  such  a  city  or  within  its  sphere  of 
usefulness  do  so  of  choice,  and  therefore  voluntarily  submit  them- 
selves to  its  peculiarities  and  its  discomforts.     That  very  rule,  as 
announced  in  Huckenstine's  appeal,194  recognizes   their   right  to 
live  and  have  their  homes  there;  and  a  case  cannot  be  found  as 
authority  for  the  right  of  any  manufacturing  company,  located  in 
a  manufacturing  district  of  a  city,  to  so  rebuild  and  operate  its 
furnaces  as  to  actually  destroy  homes  and  other  property  in  a  resi- 
dential portion  of  the  same  city.     That  this  is  what  the  appellee 
is  doing  with  the  properties  of  the  appellants  is  an  irresistible 
conclusion,  and  the  only  relief  is  by  injunction.     If  it  is  to  be 
permitted  to  so  operate  its  furnaces  that  the  burning  and  corroding 
ore  dust  emitted  from  their  stacks  is  borne  by  the  winds  and  scat- 
tered over  the  properties  of  the  appellants  with  destroying  effect, 
simply  because  of  the  plea  that  it  cannot  be  helped,  for  the  same 
reason  it  might  ask  a  chancellor  to  stay  his  arm  from  arresting 
the  descent  of  showers  of  fire  from  the  same  stacks  down  on  tne 
same  nearby  homes."195 

§  134.  Undertakers. — The  business  of  an  undertaker  is  not  a 
nuisance  per  se.  The  proprietor  of  such  a  business,  however,  has 
no  right  to  conduct  it  that  the  occupant  of  an  adjoining  dwell- 
ing is  injured  in  his  health  or  his  home  rendered  uncomfortable 
either  by  noxious  vapors  or  the  germs  and  seeds  of  disease.  But 
where  such  a  business  is  complained  of  as  a  nuisance  the  burden 
of  proof  rests  on  the  complainant  to  establish  such  fact,  and  it 
will  not  be  adjudged  to  be  a  nuisance  merely  because  it  is  ob- 
noxious or  offensive  to  an  individual  who  is  peculiarly  sensitive 

194.  70  Pa.  102,  10  Am.  Rep.  669. 

195.  Per  Brown,  J. 


1T4 


Trade  or  Business. 


§134 


and  has  an  extraordinary  repugnance  to  anything  connected  wiiL 
death.196 


196.  Westcott     v.     Middleton,     43 
N.    J.   Eq.    478,    11    Atl.    490.        The 
court    considering    the     question     at 
length  said,   in   part:   "But  the   fur- 
ther contention  that  the  business  it- 
self is  a  nuisance  is  of  great  import- 
ance and  cannot  be  passed  by  without 
the  fullest  consideration.     The  claim 
is,  that  it  is   impossible  to  carry  on 
a  business  of  this   character  without 
constant     liability     to     communicate 
diseases  to   those  who    reside   in   the 
neighborhood,  and  that  this  liability 
creates  dread,  discomfort  and  appre- 
hension, which  abridges  the  rights  of 
property.       It    is    insisted    that    the 
deadly  spore  will,  in  spite  of  the  ut- 
most precaution,  be  carried   in   such 
vessels,  and  are  liable  to  be  dislodged, 
and  to  be  communicated  to  the  near- 
est   inhabitant    at   any    moment,    im- 
pregnating   him    with    the    seeds    of 
death.     In   the   first   place   admitting 
the   possibility  of   danger   lurking   in 
every   box    where   the    person    buried 
therefrom   has   died   of    a   contagious 
disease,    what    is    the    duty    of    the 
court?        Should  the   court   say   that 
such    business,    however    lawful,    can- 
not   be    carried    on    in    the    populous 
part  of  a   city?     I  am  not   prepared 
to    assent   to    that   doctrine.        It    is 
quite  clear  to  my  mind  that  this,  like 
many   other   occupations,   may   be   so 
conducted  as  to  be  a  nuisance.       For 
example,    a    grocer    might    allow    his 
vegetables  to  decay   in   such   quanti- 
ties and   in   such  localities   upon  his 
premises  as  to  do  infinite  harm  to  his 
neighbor,  and  subject  him  to  the  pen- 
alties of  the  law,  or  to  the  restraint 
of  a  court  of  equity.     The  same  may 
be   said   of   the   vendor   of   meats;   so 


negligent  might  he  be  as  to  scatter 
disease  and  death  to  multitudes.    But 
because  these  things  are  possible,  or 
may    occasionally    happen,    it   is    not 
pretended    for    a    moment   that   it    is 
unlawful    to    carry    on    the    grocery 
business,    or    to    vend    meats    in    the 
populous    parts    of    our    cities.        It 
seems  to  me  that  the  same  reasoning 
may  be  applied,  with  great  certainty, 
to  the  business  of  undertaking.       It 
may    be    carried    on    so    negligently, 
with   such   indifferent   regard   to   the 
rights   and  feelings   of   others,   as   to 
be  not  only  an  offense  to  the  tender 
sensibilities  of  the  intelligent  and  re- 
fined,  but  to  be   a   direct  menace   to 
the  health,  and  open  violation  of  the 
civil    rights    of    all    residing    in    the 
neighborhood.    .     .     .     The  law  means 
to  protect  everyone  in  the  enjoyment 
of  such   rights;   in  the  enjoyment  of 
his   health   as   well   as   in   the   enjoy- 
ment   of    his    property,    on    the    one 
hand,  and,  on  the  other,  in  the  enjoy- 
ment  of   his   legitimate    vocation,   as 
well  as  in  the  possession  of  his  prop- 
erty.    ...    Is  the  business  in  which 
defendant   is   engaged   a   lawful   one? 
To  a   certain  extent  that  is  not  dis- 
puted.    Has  he  a   right   to  carry  it 
on    on   the   premises    which    he    owns 
and  occupies?     He  certainly  has  un- 
less  it   unreasonably   interferes    with 
the  lawful  rights  of  another.     .     .     . 
In  the  second  place,  it  is  urged  that 
the   business   of   an    undertaker    is   a 
nuisance  per  se.     Is  this  proposition 
maintainable?     ...     Is  this  busi- 
ness so  detestable  in  itself  as  unrea- 
sonably   to    interfere    with    the    civil 
rights    or    property    rights    of    those 
who    dwell    within    ordinary    limits, 


175 


CHAPTER  VIII. 

Smoke,  Fumes  and  Gases. 

Section  135.  Smoke  as  a  nuisance.— Generally. 

136.  Right  of  individual  to  pure  air. 

137.  Elements  essential   to   render   smoke   a   nuisance. 

138.  Need  not  be  injurious  to  health. 

139.  Need  be  no  special  damage  or  pecuniary  loss. 

140.  Locality  as  an  element  to  be  considered. 

141.  No   distinction    made    as    to    classes    of    persons. 

142.  That  others  contribute  to  nuisance  no   defense. 

143.  What   constitutes   a   nuisance    by   emitting    smoke. — Particular 

instances. 

144.  Same   subject. — Blacksmith's   shop. 

145.  Same  subject. — Brick  and  lime  kilns. 

146.  When  party  not  entitled  to  relief. 

147.  Where  business  legalized. 

148.  Action  for  removal  of  smokestack. 

149.  Constitutionality  of  legislative  act  making  smoke  a  nuisance. 

150.  Power  of  municipality  to  regulate. emission  of  smoke. 

151.  Same  subject. — Words  "dense  smoke"  construed. 

152.  Ordinance  limiting  emission  of  smoke  from  a  chimney  to  "three 

minutes  in  any  hour"  construed. 

153.  Ordinance  regulating   smoke   from  tug-boats. — Not  violation  of 

commerce  clause  of  constitution. 

154.  Municipal  ordinances  as  to  smoking  in  street  cars. 

155.  Sufficiency  of  notice  to  abate. — English   public  health   act. 

156.  Damages  recoverable. 

§  135.  Smoke  as  a  nuisance  generally. —  Smoke  alone  was  not 
a  nuisance  at  commont  law.1     It,  however,   becomes  a  nuisance 

and  who  can  and  do,  without  effort,  for  the  protection  of  every  individual 

see  and  hear  what  is  being  done?  The  wish,   or  desire,   or  taste.     It   is   not 

inquiry  is  not  whether  it  is  obnoxious  within   the   judicial   scheme  to  make 

to  this  or  that  individual  or  not,  but  things   pleasant   or   agreeable  for   all 

whether  or  not  it  is  of  such  a  char-  the  citizens  of  the  State."     Per  Bird, 

acter  as  to  be  obnoxious  to  mankind  V.  C. 

generally,  similarly  situated.     ...  1.  St.  Louis  v.  Hertzeberg  Packing 

The  law  does  not  contemplate  rules  &  P.  Co.,  141  Mo.  375,  42  S.  W.  954, 

176 


Smoke,  Fumes  and  Gases.  §  135 

where  it  is  of  such  a  character  as  to  cause  substantial  discomfort 
or  inconvenience  to  another,  or  to  materially  diminish  the  value 
of  adjoining  property.2  No  matter  how  lawful  a  business  may 
be  it  cannot  be  conducted  in  such  a  manner  as  to  directly,  palpably 
and  substantially  injure  and  damage  the  property  of  others  unless 
one  can  plant  himself  on  some  peculiar  ground  of  grant,  covenant, 
license  or  privilege  which  ought  to  prevail  against  a  complainant, 
or  on  some  prescriptive  right,3  and  in  an  action  for  a  nuisance  oi 
this  character  a  defense  is  held  to  be  demurrable  which  alleges 
that  the  business  was  conducted  in  the  best  and  most  approved 
manner,  or  that  it  is  of  great  benefit,  convenience  and  utility  to 
the  public.4  So  in  an  action  for  damages  for  a  nuisance  caused  by 
smoke,  gases  and  fumes  emitted  from  the  defendant's  premises 
and  carried  on  the  plaintiff's  to  the  discomfort  and  annoyance  of 
himself  and  family,  it  is  not  necessary  for  the  plaintiff  to  show 
that  the  business  of  the  defendant  was  carried  on  recklessly  or  was 
not  properly  managed.5  And  a  nuisance  arising  from  smoke  may 
be  the  subject  of  an  action  for  substantial  damages  in  an  action 
at  law;  and  wherever  a  jury  would  give  substantial  damages  in 
such  an  action  an  injunction  will  be  granted  to  restrain  the  con- 
tinuance of  the  same.6  So  where  the  nuisance,  consisting 
of  smoke,  soot,  dust  and  noise  from  the  operation  of  iron  works, 

39  L.  R.  A.  551,  64  Am.  St.  R.  516.  3.  Gilbert  v.  Showerman,  23  Mich. 

See   St.   Paul   v.   Gilfillan,   36   Minn.  448.     See  Friedman  v.  Columbia  Ma- 

298,  holding  smoke  is  not  a  nuisance  chine   Works,  99   App.   Div.    (N.  Y.) 

per  se.  504,  91  N.  Y.  Supp.  129.     As  to  pre- 

2.  Whitney     v.     Bartholomew,     21  scriptive  right  see  §§  50-58,  herein. 

Conn.  213;   Over  v.  Dehne  (Ind.  App.  4.  Friedman  v.  Columbia  Machine 

1905),    75    N.   E.    664;      Norcross   v.  Works,    99    App.   Div.    (N.   Y.)    504, 

Thorns,    51    Me.    503,    81    Am.    Dec.  91   N.  Y.  Supp.   129. 

588;   Lursen   v.   Lloyd,   76   Md.    360;  5.  Fariver  v.  American  Car  &  Foun- 

Wesson    v.    Washburn    Iron    Co.,    13  dry  Co.,  24  Pa.  Super.  Ct.  579.     See, 

Allen   (Mass.),  95,  90  Am.  Dec.   181;  also,  American  Ice  Co.  v.  Catskill  Ce- 

Whalen  v.  Keith,  35  Mo.  87;     Hyatt  ment  Co.,  43  Misc.  R.    (N.  Y.)    221, 

v.  Myers,  71  N.  C.  271;  Stockdale  v.  88  N.  Y.  Supp.  455. 

Rio  Grande  Western  Ry.  Co.    (Utah,  6.  Crump    v.    Lambert,    17    L.    T. 

1904),    77     Pac.     849;     Sampson    v.  (N.  S.)    133.     See  Sampson  v.  Smith, 

Smith,  8   Sim.  272;  Rich  v.   Baster-  8  Sim.  272;  Gullick  v.  Tremlett,  20 

field,  2  C.  &  K.  257 ;  Gullick  v.  Trem-  W.  R.  358. 
lett,  20  W.  R.  358. 

177 


r  136  Smoke,  Fumes  and  Gases. 

was  a  continuing  one  and  the  complaint  was  purely  of  an  equitable 
nature,  in  which  only  equitable  relief  could  be  afforded,  it  was 
decided  that  the  defense  that  the  plaintiff  had  an  adequate  remedy 
at  law  was  insufficient  and  that  its  insufficiency  could  be  raised 
on  demurrer.7  So  one  permitting  smoke  to  escape  from  his  prop- 
erty so  as  to  become  a  nuisance  to  occupants  of  adjoining  property 
is  liable  to  an  action  therefor.8  So  a  person  engaged  in  a  manu- 
facturing business  in  a  well  populated  city  may  be  restrained 
from  so  using  his  smokestack  as  that  the  soot  issuing  therefrom 
shall  be  a  disturbance,  annoyance  and  source  of  positive  injury  to 
another.9  And  in  one  case  the  court  says  in  its  opinion:  "  No 
case  has  been  cited,  and  we  think  none  can  be  found,  sustaining 
the  continuance  of  a  business  in  the  midst  of  a  populous  commu- 
nity, which  constantly  produces  odors,  smoke  and  soot  of  such  a 
noxious  character,  and  to  such  an  extent  that  they  produce  head- 
ache, nausea,  vomiting,  and  other  pains  and  aches  injurious  to 
health,  and  taint  the  food  of  inhabitants."  10  Where  certain  in- 
juries are  claimed  to  be  the  result  of  the  emission  of  smoke,  com- 
plained of  as  a  nuisance,  testimony  tending  to  show  that  others 
were  annoyed  and  injured  by  smoke  and  cinders  coming  from  the 
same  source  is  held  admissible  to  prove  that  the  nuisance  objected 
to  was  capable  of  inflicting  the  injury  complained  of.u 

§  136.  Right  of  individual  to  pure  air. — Every  citizen  has  a 
right  to  pure  air  consistent  with  the  nature  of  the  community  in 
which  he  lives.12  He  is  entitled  to  have  the  air  upon  his  premises 
untainted  and  unpolluted  for  the  necessary  and  reasonable  use  of 
himself  and  family.  This  does  not  mean  that  it  must  be  abso- 
lutely pure,  but  that  it  must  not  be  rendered  incompatible  with  the 

7.  Friedman  v.  Columbia  Machine  82  Mich.  471,  479,  46  N.  W.  735,  9 
Works,  99  App.  Div.   (N.  Y.)   504,  91       L.  R.  A.  722,  per  Grant.  J. 

N.  Y.  Supp.  129.  11.  Crane  Co.  v.  Stammers,  83  111. 

8.  Whalen    v.    Keith,    35    Mo.    87.       App.  329. 

See   Ottawa   Gaslight  &   Coke   Co.  v.  12.  Rhodes  v.  Dunbar,  57  Pa.   St. 

Thompson,  39  111.  598.  274,    286,    98    Am.    Dec.    221;      Fort 

9.  Sullivan  v.  Royer,  72  Cal.  248,  Worth  v.  Crawford,  74  Tex.  404,  12 
13  Pac.  655,  1  Am.  St.  R.  51.  S.  W.  52,  15  Am.  St.  R.  840. 

10.  People  v.  White  Lead  Works, 

178 


Smoke,  Fumes  and  Gases.  §  137 

physical  comfort  of  human  existence.1"  "  It  is  certainly  true  that 
the  owners  and  occupiers  of  dwelling  houses,  whether  in  the  city 
or  country,  have  the  right  to  enjoy  pure  and  wholesome  air,  that 
is,  as  pure  and  wholesome  as  their  local  situation  can  reasonably 
supply;  and  any  act  which  materially  corrupts  or  pollutes  the 
air,  done  without  authority  or  justification,  is  strictly  a  nuisance. 
If  therefore,  a  party  should  erect  a  manufacturing  establishment 
in  immediate  proximity  to  the  dwellings  of  his  neighbors,  and  in 
the  operation  of  which,  large  volumes  of  smoke,  offensive  odors 
and  noxious  vapors  are  emitted,  whereby  the  comfort  of  the  occu- 
piers of  the  dwellings  is  materially  interfered  with,  it  would  cer- 
tainly present  a  case  requiring  the  exercise  of  the  restraining  or 
preventive  power  of  a  court  of  chancery'."  14  So  in  an  English 
case  it  is  said :  "  The  owner  of  property  has  the  right  to  have  the 
air  that  passes  over  his  land  pure  and  unpolluted,  and  the  soil  and 
produce  of  it  uninjured  by  the  passage  of  gases,  by  the  deposit  of 
deleterious  substances,  or  by  the  flow  of  water."  15 

§   137.  Elements    essential    to    render    smoke    a    nuisance. — 

Smoke  is  not  a  nuisance  per  se.16  To  constitue  it  a  nuisance  it 
must  be  such  as  to  produce  a  tangible  and  appreciable  injury  to 
neighboring  property,  or  such  as  to  render  it  specially  uncomfort- 
able or  inconvenient,17  or  to  materially  interfere  with  the  ordinary 
comfort  of  human  existence.18  There  must  be  an  annoyance 
(herefrom  to  a  substantial  degree.19  The  inconvenience  must  not 
be  merely  fanciful  or  one  of  mere  delicacy  or  fastidiousness,  but 
must  be  one  which  materially  interferes  with  the  ordinary  com- 
fort, physically,  of  human  existence.20  The  law  does  not  regard 
trifling  inconveniences ;  everything  must  be  looked  at  from  a  rea.- 

13.  Cartwright  v.  Gray,  12  Grant  17.  Campbell  v.  Seaman,  63  N.  Y. 
Ch.    (Ont.)    400;   Walter   v.    Selfe,   4       568,  20  Am.  Rep.  567. 

DpG.  &  M.  321.  18.  Crump    v.    Lambert.    L.    R.    3 

14.  Adams  v.  Michael,  38  Md.  123,       Eq.  Cas.  409,  413. 

126,  17  Am.  Rep.  516,  per  Alvey,  J.  19.  Carey   v.   Ledbitter,    13    C.    B. 

15.  Crump    v.    Lambert,    L.    R.    3        (U.  S.)  470. 

Eq.  Cas.  409,  413,  per  Lord  Romilly.  20.  Cartwright  v.  Gray,  12  Grant 

M.  R.  Ch.    (Ont.)    400;  Walter  v.   Selfe,   4 

16.  St.  Paul  v.  Gilfillan,  36  Minn.  DeG.  &  M.  321. 
298. 

179 


§138  Smoke,  Fumes  and  Gases. 

-unable  point  of  view,  and  in  an  action  for  nuisance  caused  by 
noxious  and  unwholesome  smokes  and  smells  the  injury  to  be 
actionable  must  be  such  as  to  visibly  diminish  the  value  of  the 
property  and  the  comfort  and  enjoyment  of  it.21  So  an  injunction 
restraining  the  use  of  soft  coal  in  a  steam  heating  plant  adjacent 
to  an  ice  pond  on  the  ground  that  the  ice  was  rendered  unfit  for 
use  on  account  of  the  smoke  and  cinders  therefrom,  was  refused, 
it  appearing  that  the  damage  resulting,  from  the  smoke  and  cinders 
was  trifling  in  comparison  with  that  resulting  from  other  causes, 
and  that  there  was  a  considerable  saving  to  the  defendant  by  the 
use  of  such  coal.22  In  this  connection  it  is  said  by  the  court  in  a 
case  in  New  Jersey :  "  The  law  takes  care  that  lawful  and  useful 
business  shall  not  be  put  a  stop  to  on  account  of  every  trifling  or 
imaginary  annoyance,  such  as  may  offend  the  taste  or  disturb  the 
nerves  of  a  fastidious  or  over-refined  person.  But,  on  the  other 
hand,  it  does  not  allow  anyone,  whatever  his  circumstances  or  con- 
dition may  be,  to  be  driven  from  his  home  or  to  be  compelled  to 
live  in  it  in  positive  discomfort,  although  eaused  by  a  lawful  and 
useful  business  carried  on  in  his  vicinity.  The  maxim  sic  utere 
tuo  ut  alienum  non  laedas,  expresses  the  well  established  doctrine 
of  the  law."  23  So  it  has  been  declared  that  to  justify  the  inter- 
position of  a  court  of  equity  it  should  appear  that  the  nuisance 
will  cause  irreparable  injury  to  the  property  of  the  plaintiff,  or 
that  it  will  endanger  his  health,  or  prove  a  material  injury  to  the 
comfort  of  his  existence,  or  that  it  will  greatly  abridge  the  com- 
fortable enjoyment  of  life  and  happiness.24 

§  138.  Need  not  be  injurious  to  health.— Smoke  need  not  nec- 
essarily be  injurious  to  health  in  order  to  render  it  a  nuisance, 
but  it  may  be  one  where  it  causes  a  substantial  physical  discomfort 
to  another,  that  is,  such  a  discomfort  as  does  not  depend  upon  the 

21.  Tipping  v.  St.  Helens  Smelt-  294,  298.  97  Am.  Dee.  654,  per  The 
ing  Co.,  4  B.  &  S.  608.     See  Bamford       Chancellor. 

v.  Turnley,  3  B.  &  Ad.  66.  24.  Thebault    v.    Canova,    11    Fla. 

22.  Downing  v.  Elliott,  182  Mass.  143;  Euler  v.  Sullivan,  75  Md.  616, 
28,  64  N.  E.  201.  23  Atl.  845. 

23.  Ross  v.  Butler,   19  N.  J.   Eq. 

180 


Smoke,  Fumes  and  Gases.  §§  139,  140 

taste  or  imagination.25  So  smoke  may  be  a  nuisance  where  it 
makes  a  dwelling  so  uncomfortable  as  to  drive  away  one  not  com- 
pelled by  poverty  to  remain,  though  it  does  not  injure  the  health 
of  the  occupants  thereof.26  So  where  it  appeared  that  a  sulphur- 
ous gas  emitted  from  a  factory  was  occasionally  carried  by  the 
wind  over  adjoining  premises,  causing  an  irritation  of  the  throats 
of  those  dwelling  thereon,  compelled  the  closing  of  windows,  and 
injured  vegetation,  it  was  held  to  be  no  answer  thereto  that  the 
fumes  were  not  injurious  to  health.27  So  in  England,  under  the 
Sanitary  Health  Act,  1866,  sec.  19,  it  was  decided  that  it  was  not 
necessary  to  show  that  the  issuing  of  black  smoke  was  injurious 
to  health  as  well  as  a  nuisance.28  And  to  support  an  indictment 
for  a  nuisance  it  is  not  necessary  that  the  smells  produced  by  it 
should  be  injurious  to  health,  it  is  sufficient  if  they  be  offensive  to 
the  senses.29 

§  139.  Need  be  no  special  damage  or  pecuniary  loss. — A  per- 
son will  be  entitled  to  an  injunction  against  the  maintenance  of  a 
trade  or  occupation  where  the  smoke  and  vapors  therefrom  are 
such  as  to  produce  material  discomfort  to  the  plaintiff  or  his 
family  in  the  occupancy  of  their  home,  although  he  has  suffered 
no  special  damage  or  pecuniary  loss  on  account  thereof.30 

§  140-  Locality  as  an  element  to  be  considered. — Whether 
smoke  is  a  nuisance  depends  in  many  cases  on  the  locality  and 
surroundings.31  A  use  of  property  in  one  locality  and  under 
some  circumstances  may  be  lawful  and  reasonable,  which,  under 
other  circumstances,  would  be  unlawful,  unreasonable  and  a  nui- 

25.  Ross  v.  Butler,   19  N.  J.   Eq.  29.  Rex  v.  Neil,  2  C.  &  P.  485. 
294,   97   Am.  Dec.   654.     That   health  30.  Kirchgraber  v.  Lloyd,  59   Mo. 
need  not  be  endangered   to   render  a       App.  59. 

thing  a  nuisance  see  §§  87,  129,  166,  31.  St.  Paul  v.  Gilfillan,  36  Minn, 

herein.  298;  Neuhs     v.    Grasselli     Chemical 

26.  Cleveland  v.  Citizens'  Gas-  Co.,  5  Ohio  U.  P.  359.  Locality  as  af- 
light  Co.,  20  N.  J.  Eq.  2.01.  fecting  question   of  nuisance,   see  §§ 

27.  Mulligan  v.  Elias,  12  Abb.  54,  96,  97,  98,  127,  128,  140,  165,  184, 
Prac.   (N.  Y.)  259.  186,  203,  herein. 

28.  Gaskell  v.  Bayley,  30  L.  T.  N. 
S.  516. 

181 


k  |4o  Smoke,  Fumes  and  Gases. 

sance.32     Neighbors  must  endure   the   reasonable  inconveniences 
which  result  from  neighborhood,  and  these  inconveniences  vary  in 
kind  and  in  extent,  according  to  the  circumstances  of  place  and 
quality  of  the  population.33     Some  trades  may  be  nuisances  in 
cities  which  would  be  harmless  in  the  country.34     And,  on  the 
other  hand,  one  living  in  the  city  must  submit  to  annoyances  in- 
cidental to  city  life.     Manufacturing  establishments  are   an  es- 
sential and  necessary  factor  in  the  growth  and  development  of 
cities,  and  though  there  may  be  an  interference  to  some  extent,  in 
certain  parts  of  a  city,  with  the  comforts  of  life,  or  the  beauty  or 
cleanliness  of  a  city  may  be  affected  thereby,  yet  the  prosperity 
of  the  city  being  dependent  on  the  manufacturing  interest,  the 
comfort  of  the  individual  must  in  such  case  yield  to  the  public 
good.35     People  living  in  cities  do  so  voluntarily,  and  are  obliged 
to  submit  to  peculiarities  and  discomforts  incident  to  the  carrying 
of  its   industries.36        In  those  communities  where  great  works 
have  been  erected  and  carried  on  and  which  have  been  the  means 
of  developing  the  national  wealth,  a  person  can  not  stand  upon  ex- 
treme rights  and  maintain  an  action  for  every  matter  of  annoy- 
ance, since  if  this  could  be  done  it  would  destroy  business  in  such 
localities.37     So  it  has  been  declared  that:  "In  determining  the 
question  of  nuisance  from  smoke  or  noxious  vapors,  reference  must 
always  be  had  to  the  locality,  the  nature  of  the  trade,  the  charac- 
ter of  the  machinery,  and  the  manner  of  using  the  property  pro- 
ducing the  annoyance  and  injury  complained  of.     A  party  dwell- 
ing in  the  midst  of  a  crowded  commercial  and  manufacturing  city 
cannot  claim  to  have  the  same  quiet  and  freedom  from  annoyance 
that  he  might  rightfully  claim  if  he  were  dwelling  in  the  country. 
Every  one  taking  up  his  abode  in  the  city  must  expect  to  encounter 

32.  Campbell  v.  Seaman,  63  N.  Y.       Ohio  C.  D.   125,  15  Ohio  C.   C.   125; 
568,  20  Am.  Rep.  567.  Huckenstine's  Appeal,  70  Pa.  St.  102, 

33.  Carpenter  v.  La  Ville  de  Mai-       10  Am.  Rep.  669. 

eouneuve,   Rap.  Jud.   Queb.   11   C!   S.  36.  Huckenstine's   Appeal,    70    Pa. 

242.  St.  102,  10  Am.  Rep.  609. 

34.  Whitney    v.    Bartholomew,    21  37.  Tipping   v.    St.   Helens    Smelt- 
Conn.  213,  218.  ing  Co.,  4  B.  &  S.  608.     See  Bamford 

35.  Louisville   Coffin    Co.   v.    War-  v.  Turnley,  3  B.  &  S.  66. 
ren,  78  Ky.  400;  Culver  v.  Ragan,  8 

182 


Smoke,  Fumes  and  Gases.  §  141 

the  inconveniences  and  annoyances  incident  to  such  community, 
and  he  must  be  taken  to  have  consented  to  endure  such  annoyances 
to  a  certain  extent."  38     And  in  another  case  it  is  said :  "  It  is 
true  that  in  places  of  population  and  business  not  everything  that 
causes  discomfort,  inconvenience  and  annoyance,  or  which,  per- 
haps, may  lessen  the  value  of  surrounding  property,  will  be  con- 
demned and  abated  as  a  nuisance.     It  is  often  difficult  to  deter- 
mine the  boundary  line  in  many  such  cases.     The  carrying  on  of 
many  legitimate  businesses  is  often  productive  of  more  or  less  an- 
noyance, discomfort,  and  inconvenience,  and  may  injure  surround- 
ing property  for  certain  purposes,  and  still  constitute  no  invasion 
cf  the  rights  of  the  people  living  in  the  vicinity."39   But  although 
one  residing  in  a  city  must  endure  certain  annoyances  or  incon- 
veniences, yet  this  does  not  obligate  him  to  endure  substantial  an- 
noyances or  inconveniences  which,  by  the  exercise  of  reasonable 
care  the  one  responsible  therefor  could  avoid,  and  which  cannot  be 
regarded  as  a  necessary  incident  of  living  in  a  populous  commu- 
nity.    So  where  a  most  disagreeable  and  serious  discomfort  was 
caused  to  a  person  by  the  emission  of  soot  from  a  smokestack  which 
could  have  been  so  used  as  to  avoid  this  result  it  was  held  to  be  a 
nuisance  which  was  properly    restrained  by  injunction.40 

§  141.  No  distinction  made  as  to  classes  of  persons.— In  de- 
termining whether  smoke  is  a  nuisance  no  distinction  as  to  classes 
of  persons  should  be  made.  The  fact  that  persons  affected  thereby 
are  artizans  or  laborers  who  may  to  some  extent  be  accustomed  to 
some  degree  of  smoke,  soot  or  cinders  in  working  at  their  trades 
cr  occupations,  does  not  remove  them  from  the  protection  of  the 
law.  They  are,  nevertheless,  entitled  to  the  same  remedy  and  to 
the  application  of  the  same  rules  as  control  in  the  case  of  persons 
who  are  accustomed  to  more  luxurious  surroundings.41     The  court 

38.  Dittman  v.  Repp,  50  Md.  516,  82  Mich.  471,  478,  46  N  W.  735,  9 
522,  33  Am.  Rep.   325,  per  Alvey,  J.       L.  R.  A.  722,  per  Grant,  J 

See,  also,  Euler  v.   Sullivan,   75  Md.  40.  Sullivan  v.  Royer    , Cal.  248, 

616,    23    Atl.    845;      Tipping    v.    St.  13  Pac.  655,  1  Am    St.  R    51. 

Helens  Smelting  Co.,  4  B.  &  S.  608,  41.  Ross  v.   Butler,   19  N.  J.   Bq. 

11  H.  L.  Cas.  642,  650.  294,  97  Am.  Dec.  654. 

39.  People  v.  White  Lead  Works, 

183 


§  141  Smoke,  Fumes  and  Gases. 

said,  in  this  case :  "  I  find  no  authority  that  will  warrant  the  po- 
sition that  the  part  of  a  town  which  is  occupied  by  tradesmen  and 
mechanics  for  residences  and  carrying  on  their  trades  and  busi- 
ness, and  which  contains  no  elegant  and  costly  dwellings,  and  is 
not  inhabited  by  the  wealthy  and  luxurious,  is  a  proper  and  con- 
venient place  for  carrying  on  business  which  renders  the  dwell- 
ings there  uncomfortable  to  the  owners  and  their  families  by  of- 
fensive smells,  smoke,  cinders  or  intolerable  noises,  even  if  the 
inhabitants  are  themselves  artisans,  who  work  at  trades  occasion- 
ing some  degree  of  noise,  smoke  and  cinders.     Some  parts  of  a 
town  may,  by  lapse  of  time,  or  prescription,  by  the  continuance  of 
a  number  of  factories  long  enough  to  have  a  right  as  against  every 
one,  be  so  dedicated  to  smells,  smoke,  noise  and  dust,  that  an  ad- 
ditional factory,  which  adds  a  little  to  the  common  evil,  would  not 
be  considered  at  law  a  nuisance,  or  be  restrained  in  equity.     There 
is  no  principle  or  the  reason  on  which  its  rules  are  founded,  which 
should  give  protection  to  the  large  comforts  and  enjoyments  with 
which  the  wealthy  and  luxurious  are  surrounded,  and  fail  to  se- 
cure to  the  artisan  and  laborer  and  their  families,  the  fewer  and 
more  restricted  comforts  which-  they  enjoy."42     And  in   another 
case  it  is  also  declared  by  the  court:  "  Whatever  is  offensive  phy- 
sically to  the  senses,  and  by  such  offensiveness  makes  life  uncom- 
fortable is  a  nuisance;   and  it  is  not  the  less  so  because  there 
may  be  persons  whose  habits  and  occupations  have  brought  them 
to  endure,  the  same  annoyances  without  discomfort.     Other  per- 
sons, or  classes  of  persons,  whose  senses  have  not  been  so  hardened, 
and  who,  by  their  education  and  habits  of  life,  retain  the  sensi- 
tiveness of  their  natural  organization,  are  entitled  to  enjoy  life 
in  comfort  as  they  are  constituted.     The  law  knows  no  distinction 
of  classes,  and  will  protect  any  citizen  or  class  of  citizens  from 
wrongs  and  grievances  that  might  perhaps  be  borne  by  others  with- 
out suffering  or  much  inconvenience."  43 

42.  Per  The  Chancellor.  See,  also,  43.  Cleveland     v.      Citizens'     Gas 

Hurlbutt  v.  McKone,  55  Conn.  31,  10      Light  Co.,  20  N.  J.  Eq.  201,  206,  per 
Atl.  164,  3  Am.  St.  R.  17.  The  Chancellor. 


184 


Smoke,  Fumes  and  Gases.  §§  142,  143 

§  142.  That  others  contribute  to  nuisance  no  defense. — Each 
person  who  acts  in  maintaining  a  nuisance  is  liable  for  the  result- 
ing damage,  If  he  acts  independently  and  not  in  concert  with 
others  he  is  liable  for  the  damages  which  result  from  his  own  act 
only.44  And  the  fact  that  it  is  difficult  to  measure  accurately  the 
damage  which  was  caused  by  the  wrongful  act  of  each  contributor 
to  the  aggregate  result  does  not  affect  the  rule,  nor  make  any  one 
liable  for  the  acts  of  others.45  So  in  an  action  for  a  nuisance 
caused  by  the  emission  of  smoke  from  the  chimney  of  a  factory 
it  is  no  defense  thereto  that  smoke  and  cinders  are  emitted  from 
other  factories  in  that  vicinity,  the  defendant  being  liable  for  the 
nuisance  caused  by  the  emission  of  smoke  from  his  factory.46 

§  143.  What  constitutes  a  nuisance  by  emitting  smoke — Par- 
ticular instances. — A  person  cannot  carry  on  a  manufacturing 
business  so  as  to  render  the  air  impure  and  offensive  and  injurious 
to  the  health  of  the  occupants  of  a  dwelling  house.47  So  smoke, 
soot,  and  cinders  from  the  mill  of  a  defendant  causing  great  in- 
convenience and  annoyance  to  the  plaintiff  in  his  occupation  of 
his  dwelling  may  be  abated  by  suit.48  And  it  is  an  actionable 
nuisance  for  a  person  to  build  his  chimneys  so  low  as  to  cause  the 
smoke  to  enter  his  neighbor's  house,  and  it  is  no  defense  thereto 
that  the  chimneys  were  higher  than  were  required  by  the  city 
regulations  for  chimneys.49  And  where  a  plaintiff  who  was  an 
owner  of  certain  ice  in  the  Hudson  river  complained  of  a  nuisance 
consisting  of  the  operation  by  a  cement  company  of  its  plant  in 

44.  Harley  v.  Merrill  Brick  Co.,  Lull  v.  Improvement  Co.,  19  Wis. 
83   Iowa,   73,   48  N.   W.    1000,   citing       101. 

Loughran   v.    Des    Moines,    72    Iowa,  46.  Euler  v.  Sullivan,  75  Md.  616, 

386,  34  N.  W.  172;   Ferguson  v.  Man-  23  Atl.  845. 

ufacturing  Co.,   77   Iowa,  578,  42   N.  47.  Wesson  v.  Washburn  Iron  Co., 

W.     448;      Sloggy    v.     Dilworth,    38  13   Allen    (Mass.),    95,   90   Am.    Dec. 

Minn.  179,  36  N.  W.  451;   Scllick  v.  181;   Carpentier  v.  Maisonneuve,  Rap. 

Hall,  47  Conn.  273.     See,  also,  §  164,  Jud.  Queb.   11  C.  S.  242. 

herein.  48.  Hyatt  v.  Myers,  71  N.  C.  271. 

45.  Harley  v.  Merrill  Brick  Co.,  49.  Baltimore  &  P.  R.  Co.  v.  Fifth 
83  Iowa,  73,  48  N.  W.  1000,  citing  Baptist  Church,  108  U.  S.  317,  27 
Chipman   v.    Palmer,    77    N.    Y.    53;  L.    Ed.    739,   2    Sup.    Ct.    719.       See 

Whalen  v.  Keith,  35  Mo.  87. 

185 


§  143  Smoke,  Fumes  and  Gases. 

such  a  manner  as  to  throw,  when  the  wind  was  in  the  right  direc- 
tion, cinders,  ashes,  clay  dust,  coal  dust  and  soot  upon  the  ice, 
which  substances  sank  into  the  ice  and  rendered  it  unmerchant- 
able, it  was  decided  that  the  plaintiff  was  entitled  temporarily  to 
enjoin  the  operation  of  such  plant  in  the  manner  complained  of 
during  the  season  for  harvesting  ice.50    Aud  in  an  action  to  enjoin 
the  maintenance  of  a  nuisance  consisting  of  smoke,  fumes,  soot 
and  noise  from  the  operation  of  iron  works,   a  partial  defense 
that  the  plaintiff  with  a  full  knowledge  of  the  defendant's  works, 
and   a  long  time  after  such  works  were  constructed   and  oper- 
ated by  the  defendant  purchased  the  premises  mentioned  in  the 
complaint,  for  the  purpose  of  compelling  the  defendant  to  pur- 
chase them  from  the  plaintiff  at  an  advanced  and  increased  price, 
is  demnrable.51     Again,  where  the  dust  and  chaff  from  a  grain 
threshing  machine  on  adjoining  premises  enter  plaintiff's  house, 
to  the  annoyance  of  his  family  and  the  injury  of  his  furniture,  it 
will  constitute  a  nuisance.52     So  the  operation  of  coke  ovens  in 
such  a  manner  as  to  cause  the  smoke  and  gases  therefrom  to  in- 
jure the  health   of  the  occupants  of   a  dwelling  house   and  to 
depreciate  the  value  of  such  house  may  be  restrained.53     And 
where,  by  the  operation  of  an  electric  light  plant,  smoke  and  dirt 
are  cast  upon  adjoining  property  the  proprietor  of  such  plant 
will  be  liable  to  the  adjoining  owner  in  damages  for  the  depreci- 
ation in  value  of  his  property.54    And  where  the  defendant  erected 
a  planing  machine  and  circular  saw,  driven  by  steam,  and  was  in 
the  habit  of  burning  the  pine  shavings  and  other  refuse  and  he 
took  no  means  to  consume  or  prevent  the  smoke  which  was  carried 
onto  plaintiff's  premises  in  such  quantities  as  to  be  a  nuisance  it 
was   decreed   that   the   defendant   should    desist  from    using  his 

50.  American  Ice  Co.  v.  Catskill  52.  Winters  v.  Winters..  78  111. 
Cement    Co.,    43    Misc.    R.     (N.    Y.)        App.  417 

221,  88  N.  Y.  Supp.  455.  53.  McClung  v.  North   Bend  Coal 

51.  Friedman  v.  Columbia  Iron  &  C.  Co.,  9  Ohio  C.  C.  259,  2  Ohio 
Works,  99  App.  Div.  (N.  Y.)  504,  Dec.  531.  As  to  coke  ovens  see  §  112, 
91  N.  Y.  Supp.  129.     As  to  foundries  herein. 

see    §   119,  herein.       As   to   smelting  54.  Hyde   Park   Thompson-Houston 

works  see  §  132,  herein.     As  to  steel       Light  Co.  v.  Porter,  64  111.  App.  152. 
furnaces  see  §  133,  herein.  As  to  electric  light  plants  see  §  114, 

herein. 

186 


Smoke,  Fumes  and  Gases.  §§  144,  1  !."> 

steam  engine  in  such  a  manner  as  to  occasion  damage  or  annoyance 
to  the  plaintiff  from  the  smoke.00 

§  144.  Same  subject — Blacksmith's  shop. — The  business  of  a 
blacksmith,  though  necessary  and  useful,  should  be  carried  on  so 
as  not  to  injure  others,  and  where  such  a  business  was  conducted 
within  twelve  feet  of  plaintiff's  hotel  and  he  was  injured  in  his 
property,  comfort  and  convenience  by  the  black  cinders,  dust 
and  ashes  arising  from  the  shop  it  was  decided  that  the  jury 
would  be  authorized  to  infer  that  the  defendant  was  guilty  of  a 
nuisance.56  And  where  the  plaintiff  was  the  owner  of  a  dwelling 
house  and  land,  and  the  defendant  was  in  the  occupation  of  a 
lot  of  land  adjoining  the  plaintiff's  land,  upon  which  was  a  large 
carriage  factory  and  a  blacksmith's  shop  having  several  chimneys 
and  the  shop  and  chimneys  were  placed  upon  or  very  near  the 
dividing  line  of  the  lands  of  the  parties.,  and  in  consequence  of 
the  location  and  use  of  the  blacksmith's  shop,  the  cinders,  ashes, 
and  smoke  issuing  therefrom,  were  thrown  in  large  quantities 
upon  the  plaintiff's  house  and  land,  rendering  the  water  unfit 
for  use  and  the  house  nearly  untenantable,  it  was  held  that  the 
defendant  was  liable  for  such  injury.07 

4 

§  145.  Same  subject — Brick  and  lime  kilns. —  Where  the  pro- 
cess of  brickmaking  constitutes  a  private  nuisance  by  the  com- 
munication of  smoke  and  vapor  which  become  mixed  with  the  air 
supplied  to  the  house  of  another  and  constitutes  such  an  incon- 
venience as  to  materially  interfere  with  the  ordinary  comfort 
of  human  existence  an  injunction  will  be  granted  to  restrain  the 
further  burning  of  bricks  so  as  to  occasion  such  inconvenience.58 
And  where  it  appears  that  the  smoke,  gases  and  vapors  from  a 
brick  kiln  settle  upon  and  destroy  the  crops  of  another,  it  is  no 

55.  Cartwright  v.  Gray,  12  Grant  58.  Campbell  v.  Seaman,  63  N.  Y. 
Ch.   (Ont.)   399.  568,   20   Am.    Rep.    567;      Walter   v. 

56.  Norcross  v.  Thorns,  51  Me.  Selfe,  4  Eng.  L.  &  Eq.  15;  Cavey  v. 
503,  81  Am.  Dec.  588.  As  to  black-  Ledbitter,  13  C.  B.  (N.  S.)  470; 
smith  shop  see,  also,  §  107,  herein.  Roberts  v.  Clarke,   18   L.  T.    (N.   S.) 

57.  Whitney  v.  Bartholomew,  21  49.  As  to  brick,  lime  and  lumber 
Conn.  213.  kilns,  see  §  111  herein. 

187 


§  145  Smoke,  Fumes  and  Gases. 

defense  to  an  action  by  the  latter  against  the  proprietor  of  the 
brick  kiln  that  the  injury  resulted  from  a  reasonable  use  of  de- 
fendant's plant,  or  that  his  brick  kilns  were  built  after  the  most 
approved  patterns  and  that  it  employed  skilled  persons  in  burn- 
ing the  bricks.59       So  a  brick-kiln  affecting  an  ordinary  dwelling 
with  smoke  therefrom  is  a  nuisance  and  it  can  not  be  urged  as 
a  reason  why  an  injunction  should  not  be  granted  that  the  owner 
has  a  prescriptive  right  to  another  kiln  nearer  to  the  dwelling 
and  almost  in  a  line  with,  that  complained  of.60     And  the  busi- 
ness of  brick  burning  was  enjoined  where  it  appeared  from  the 
evidence  that  both  the   plaintiff  and  his  wife  had   suffered   in 
their  health  from,  the  noxious  air  which  had  been  emitted  while 
carrying  on  such  business,  and  that  the  wife  had  been  afflicted 
with  nausea  from  that  cause,   and  that  they  had  been  obliged 
to  keep  the  windows  and  doors  of  their  house  shut  in  order  to 
exclude  the  corrupted   air.61     And  where  the  smoke  and  smells 
from  the   business  of   brick   burning   injured    the  comfort  and 
enjoyment  of  the  plaintiff  and  in  many  cases  had  destroyed  or- 
namental   trees,    an    injunction   restraining  the    plaintiff    from 
carrying  on   such  business  was  granted   though   it  was  carried 
on  for  the  purpose  of  fulfilling  a  contract  for  government  forti- 
fications, it  appearing  that  the  business  could  be  carried  on  else- 
where without  inconvenience  to  the  plaintiff.62     And  in  another 
case,  where  an  action  was  brought  to  restrain  the  operation  of  a 
lime-kiln  it  was  said :  "  By  the  use  of  the  defendant's  limekilns, 
in  the  manner  described  by  the  witnesses,  the  effects  are  pro- 
duced which  render  the  air  more  or  less  impure  when  filled  with 
the  smoke  and  gas  escaping  upon  the   plaintiff's  premises   and 
into  his   dwelling;    the   air  is  rendered   unwholesome   and   dis- 
agreeable, and  unpleasant  to  inhale.     In  other  words,  the  plain- 
tiff's premises   are  rendered  unfit  for  a  comfortable  habitation, 
and  to  persons  of  sensitive  lungs,  the  smoke  and  gas  when  in- 
haled are  alike  unpleasant  and  uncomfortable,  as  well  as  to  some 

59.  Powell    v.    Brookfield    Pressed  61.  Pollock    v.    Lester,     11    Hare, 
Brick   Co.    (Mo.   App.,    1904),   78    S.       266. 

W.  646,  648.  62.  Beardmore  v.  Tredwell,  31   L. 

60.  Bareham  v.  Hall,  22  L.  T.  (N.       J.  Ch.  (N.  S.)   116. 
S.)   116. 

188 


Smoke,  Fumes  and  Gases.  §  146 

extent  detrimental  to  health.  .  .  .  The  plaintiff  is  entitled 
to  enjoy  his  premises  free  from  the  presence  of  smoke,  gas,  and 
dust  proceeding  from  the  defendants'  kiln,  and  the  defendants 
have  no  right  thus  to  pollute  the  air  and  disturb  the  comfortable 
habitation  of,  and  the  enjoyment  of,  the  plaintiffs  premises."6 
But  an  injunction  restraining  the  manufacture  of  brick  on  ad- 
joining premises  was  refused  where  the  only  injuries  shown  wero 
a  slight  discoloration  of  the  foliage  of  some  of  the  trees  on 
complainant's  land  and  an  occasional  perceptible  odor  in  com- 
plainant's house  from  the  gases  from  the  kiln  which  were  an- 
noying to  her  because  of  her  health,  and  would  not  have  injured 
a  person  of  ordinary  health.64 

§  146.  When  party  not  entitled  to  relief.—  Where  the  injury 
complained  of  is  occasional  and  is  such  that  it  can  be  compensated 
for  in  an  action  at  law,  it  has  been  decided  that  the  plaintiff  will 
not  be  entitled  to  an  injunction.65  So  where  the  plaintiff,  who 
was  engaged  in  the  business'  of  weaving  cocoanut  fibre  into  mats, 
for  which  purpose  the  matting  had  to  be  immersed  in  bleaching 
liquids  and  then  hung  out  to  dry,  complained  of  injury  to  his 
fabrics  by  reason  of  fumes  from  a  manufacturing  process  carried 
on  upon  adjoining  premises,  by  reason  of  which  the  color  of  the 
mats  was  permanently  injured,  it  was  decided  that  an  injunction 
would  not  be  issued,  but  the  plaintiff  would  be  left  to  his  remedy 
at  law,  it  appearing  that  extra  precautions  were  taken  to  avoid 
any  such  result  and  that  the  injury  complained  of  had  been  only 
accidental  and  occasional.66  And  where  plaintiff,  who  owned  a  pond 
from  which  he  cut  ice  for  family  use,  brought  a  suit  to  restrain  de- 
fendant from  using  soft  coal  or  other  fuel  that  would  interfere 
with  or  injure  the  property  or  business  of  the  plaintiff  and  for  an 
assessment  of  damages,  it  was  decided  that  as  there  was  no  finding 
that  any  unusual  or  extraordinary  volumes  of  smoke  issued  from 
defendant's  chimney  at  any  time  and  that  if  any  smoke  or  cinders 
were  deposited  they  contributed  slightly,  if  at  all,  to  the  injury  to 

63.  Hutchins    v.    Smith,    63    Barb.  65.  Nelson    v.    Milligan,    151     111. 
(N.  Y.)  251,  258,  per  Hardin,  J.  462,  38  N.  E.  239. 

64.  Ladd   v.    Granite    State    Brick  66.  Cooke  v.   Forbes,  L.   R.   5   Eq. 
Co.,  68  N.  H.  185,  37  Atl.  1041.  Cas.  166. 

189 


§  147  Smoke,  Fumes  and  Gases. 

the  ice,  and  the  damage  done  by  them  was  insignificant  as  com- 
pared with  that  resulting  from  other  causes,  the  plaintiff  was  not 
entitled  to  an  injunction  as  it  would  inflict  great  and  unnecessary 
injury  on  defendant;  and  it  was  also  decided  that  he  was  not 
entitled  to  damages'.67  In  this  case  it  was  said :  "  To  entitle  the 
plaintiff  to  relief,  the  injury,  of  which  he  complains,  must  be  cer- 
tain and  substantial,  and  not  slight  or  theoretical.  The  right  is 
not  a  right  to  absolute  purity,  any  invasion  of  which,  would  give  a 
right  of  action,  but  it  is  a  right  to  such  a  degree  of  purity  as 
taking  all  the  circumstances  into  account  the  plaintiff  is  reasonably 
entitled  to."  68 

§  147.  Where  business  legalized. —  Where  smoke  is  caused  by 
the  carrying  on  of  a  trade  or  business  which  is  legalized  under 
authority  from  the  sovereign  and  such  trade  or  business  is  con- 
ducted in  a  proper  and  careful  manner  and  the  smoke  complained 
of  is  a  necessary  result  thereof,  it  will  not  constitute  a  nuisance.69 

So  smoke  from  a  distillery  which  has  been  legalized  by  a  city 
and  is  conducted  properly  and  with  due  regard  to  the  police  regu- 
lations of  the  city,  has  been  held  not  a  nuisance.70  So  fuel  is  inci- 
dental to  the  operation  of  a  railroad,  which  has'  been  authorized 
by  law,  and  proper  structures  are  necessary  to  supply  the  same 
at  convenient  points  on  the  line  of  the  road,  and  dust  and  smoke 
from  a  coal  chute,  properly  constructed  and  operated,  is  not  a 
nuisance,  of  which  one,  whose  land  does  not  adjoin  the  right  of 
way  can  complain.71  And  smoke  issuing  from  an  opening  in  a 
railroad  tunnel,  by  reason  of  the  aperture  being  enlarged,  the  rail- 
way being  authorized,  is  not  a  nuisance,  in  the  absence  of  negli- 
gence on  the  part  of  the  campany,  the  damage  complained  of  being 
held  to  arise  from  the  operation  of  the  road  and  not  from  the  alter- 
ation.72 If,  however,  the  smoke  is  caused  by  the  negligent  opera- 
tion of  the  road,  the  company  will  be  liable.73     And  the  creation 

67.  Downing  v.  Elliott,   182  Mass.  71.  Densmore  v.  Central  I.  R.  Co., 
28,  64  X.  E.  201.  72  Iowa,  182,  33  N.  W.  456. 

68.  Per  Morton,  J.  12.  Attorney-General  v.  Metropoli- 

69.  See  Chap.  VI,  herein.  tan  R.  Co.    (C.  A.),    (1894)    1   Q.    I  J. 

70.  Lewis  v.  Behan,  Thorn  &  Co.,  384. 

28  La.  Ann.  131.  73.  Louisville  &  N.  R.  Co.  v.  Orr, 

12  Ky.  Law  R.  756,  15  S.  W.  8. 

190 


Saioke,  Fumes  and  Gases.  §§  148,  149 

of  a  nuisance  by  the  emission  of  smoke  from  a  smoke  stack  of  a 
steam  engine  is  held  not  justified  by  the  granting  of  a  license  by 
the  board  of  supervisors  for  the  erection  and  maintenance  of  such 
engine.74  And  authority  conferred  by  charter  to  maintain  and 
carry  on  a  brick  kiln,  is  no  defense  to  an  action  for  a  nuisance 
caused  thereby  as  where  the  smoke  and  gas  therefrom  destroyed  the 
crop  of  another.75 

§  148.  Action  for  removal  of  smokestack. — To  authorize  a 
court  to  remove  a  valuable  structure  as  a  nuisance,  damages!  must 
be  proved  of  a  substantial  and  continuing  character.  This  prin- 
ciple has  been  enunciated  in  a  recent  case  in  Missouri  and  applied 
in  an  action  to  enjoin  the  maintenance  of  a  sheet  iron  smoke  stack 
on  defendant's  building  within  a  few  feet  of  a  building  owned  by 
the  plaintiff.  The  smoke  stack  occupied  about  one-third  of  the 
width  of  an  alley  between  the  two  buildings  and  on  account  of  the 
heat  from  it,  it  wast  necessary  in  the  summer  time  to  close  win- 
dows in  offices  in  the  building  owned  by  the  plaintiff  which  were 
rendered  untenantable.  Light  and  air  was  also  obstructed  thereby. 
The  court  granted  the  relief  sought  by  the  plaintiff,  holding  that 
the  smoke  stack  as  maintained  by  the  defendant  constituted  a 
nuisance.76 

§  149.  Constitutionality  of  legislative  act  making  smoke  a 
nuisance. — In  the  exercise  of  the  former  possessed  by  the  legisla- 
ture of  a  State  to  declare  that  a  nuisance  which  is  not  one  per  se 
or  was  not  one  at  common  law,77  it  may  declare  the  emission  of 
dense,  opaque  smoke  into  the  open  air  of  cities  having  a  popula- 
tion of  one  hundred  thousand  inhabitants,  a  nuisance.  And  such 
a  statute  is  not  rendered  unconstitutional  by  reason  of  a  proviso 
therein  that  an  owner  of  premises  may  be  exempt  where  he  can 
show  to  the  satisfaction  of  the  court  or  jury  trying  the  facts  that 
there  is  no  known  practicable  device,  appliance,  means,  or  method 
by  application  of  which  to  his  building  or  premises,  the  emission 

74.  Sullivan  v.  Royer,  72  Cal.  76.  St.  Louis  Safe  Dep.  &  S.  Bank 
248,  13  Pac.  655,  1  Am.  St.  R.  51.             v.  Kennett  Estate    (Mo.  App..  1903), 

75.  Powell    v.    Brookfield    Pressed       74  S.  W.  474. 

Brick  Co.   (Mo.  App.),  78  S.  W.  646,  77.  See  §§  81-84,  herein. 

648. 

191 


§  L49  Smoke,  Fumes  and  Gases. 

or  discharge  of  the  dense  smoke  complained  of  could  have  been 
prevented.78  One  of  the  grounds  upon  which  the  constitutionality 
of  this  statute  was  attacked  in  this  case,  was?  that  the  legislature 
had  invaded  the  judicial  province  by  declaring  that  to  be  a  nuis- 
ance which  was  not  inherently  one.  Upon  this  point  it  was  declared 
by  Gault,  P.  J. :  "  Because  at  common  law  smoke  was  not  a  nuis- 
anse  per  se  is  no  reason  why  the  people  of  this*  State,  through  their 
representatives  in  the  legislative  department,  may  not  change  that 
law,  and  make  it  a  nuisance  per  se  when  the  location  and  sur- 
rounding circumstances,  in  their  opinion  and  judgment,  require 
it.  .  .  .  It  was  entirely  competent  for  the  legislature  to  take 
cognizance  of  the  fact  known  to  all  men  that  the  emission  and  dis- 
charge of  dense  smoke  into  the  atmosphere  of  a  large  and  popu- 
lous city  is  of  itself  a  nuisance,  a  constant  annoyance  to  the  gen- 
eral health  of  such  city,  and  one  calculated  to  interfere  with  the 
health  and  comfort  of  the  inhabitants  thereof,  and  to  declare  it  a 
nuisance  per  se.  .  .  .  It  had  the  power  and  must  be  presumed 
to  have  inquired  into  the  actual  conditions  as  to  the  effect  of  emit- 
ting large  quantities  of  dense  smoke  in  cities  having  a  population 
of  one  hundred  thousand  people  and  the  resulting  injury  to  the 
health  and  comfort  of  the  public  therein,  as  well  as  the  probable 
injury  to  the  property  owners  in  requiring  them  to  use  smoke 
consuming  devices,  and  the  discretion  exercised  by  them  within 
their  conceded  powers  we  have  no  power  to  control  unless  it  in- 
volves a  violation  of  some  right  protected  by  the  constitution." 
It  was  also  contended  in  thisi  case  that  the  statute  was  in  the 
nature  of  a  special  law  and  also  unconstitutional,  upon  which 
point  it  was  also  said :  "  That  it  is  a  general  law  in  that  it  applies 
alike  to  all  cities  having  or  which  may  hereafter  have  a  popula- 
tion of  one  hundred  thousand  inhabitants,  and  to  all  persons  re- 
siding therein  is  clear  from  its  reading.  But  it  is  insisted  that  it 
is  obnoxious  class  legislation ;  that  if  it  is  a  nuisance  to  emit  and 
discharge  dense  smoke  in  a  city  of  one  hundred  thousand  inhabi- 
tants it  is  equally  so  in  a  city  of  one-half  or  one-quarter  or  one- 
tenth  that  size.  .  .  .  But  we  think  that  the  classification  is  not 
an  unreasonable  one.     If  one  corporation  or  individual  may  with 


78.  State  v.  Toner,  185  Mo.  79,  84 
S.  W.  10. 


192 


Smoke,  Fumes  and  Gases.  §  149 

impunity  emit  and  discharge  volumes  of  dense  opaque  smoke  into 
the  air  of  a  city  of  one  hundred  thousand  people,  then  all  other 
corporations,  manufactories  and  citizens  may  do  likewise,  and  it 
is  obvious  that  the  proportion  of  smoke  and  discomfort  will  be 
much  greater   than   if  manufactories   and  citizens  do  the   same 
things-  in  less  populous  cities,  where  experience  shows  the  demand 
for  such  works  is  much  less,  and  the  consequent  accumulation  of 
.smoke  correspondingly  less.     .     .     .     The  legislature  had  the  right 
to  inquire  into  the  relative  evils  resulting  from  the  emission  of 
dense  smoke  in  large  and  populous  cities.     The  suppression  of  the 
nuisance  was  clearly  a  legislative  power  and  the  whole  matter 
was  in  the  discretion  of  the  legislature,  and  it  must  be  presumed 
that  its  classification  was  based  upon  satisfactory  evidence.     Ac- 
cordingly we  hold  that  in  providing  that  the  law  should  be  con- 
fined in  its  operation  to  cities  of  one  hundred  thousand  inhabitants 
it  did  not  transcend  its  authority.     But  it  is  further  argued  under 
this  objection  that  the  act  is  class  legislation  in  that  it  exempts 
owners  of  premises  who  may  be  able  to  show  to  the  satisfaction  of 
the  court  or  jury  trying  the  facts  that  there  is  no  known  practica- 
ble device,  appliance,  means  or  method  by  application  of  which  to 
his  building  or  premises,  the  emission  or  discharge  of  the  dense 
smoke  complained  of  could  have  been  prevented.     .     .     .     It  is  too 
plain  for  argument  that  it  was  within  the  power  of  the  Legislature 
of  Missouri  to  enact  all  reasonable  regulations  for  the  suppression 
and  prevention  of  the  accumulation  of  vast  quantities  of  dense 
smoke   in  our  populous  cities,  and  they  did  so  by  the  Act  of  1901, 
but  it  is  to  their  credit  that  they  were  careful  to  abstain  from  even 
a  semblance  of  oppression  and  an  invasion  of  the  property  rights 
of  owners  and  managers  of  buildings  to  heat  the  same  or  to  main- 
tain engines  and  boilers  for  the  manufacture  of  wares  and  mer- 
chandise, by  providing  that  if  there  were  no  known  practicable 
devices  or  appliances  by  which  dense  smoke  so  generated  could  be 
prevented,  they  should  not  be  punished  therefor.     It  was  entirely 
competent  for  the  legislature  to  make  this  exception,  as  it  did, 
available  not  to  a  certain  class,  but  to  every  citizen  or  corporation 
charged  with  a  violation  of  the  said  smoke  act     .     .     .      Our 
conclusion  is  then  that  the  proviso  did  not  render  the  act  uncon- 
stitutional as  class  legislation." 

193 


8  150  Smoke,  Fumes  and  Gases. 

The  additional  claim  was  also  made  in  this  case  that  the  act 
was  in  violation  of  the  14th  amendment  to  the  Federal  Constitu- 
tion because  by  implication  it  omitted  from  its  operation  locomo- 
tive engines  and  steamboats.  This  contention  of  the  defendant 
the  court  also  did  not  sustain,  saying:  "  Conceding  that  locomo- 
tive engines  and  steamboats  are  not  included  in  the  term  of  any 
building,  establishments  or  premises,  the  conclusion  reached  by 
the  court  in  Moses  v.  United  States,79  that  there  is  a  reasonable 
basis  for  the  classification  of  stationary  engines  and  buildings  in 
one  class,  and  portable  engines  in  another,  appears  to  us  to  be 
sound  and  sustainable  on  reason  and  authority.  As  to  the  further 
contention  that  brick  kilns  do  not  fall  within  the  application  of  the 
statute,  we  think  it  is  not  well  taken.  The  act  by  its  terms  in- 
cludes any  building,  establishment  or  premises  from  which  dense 
smoke  is  so  emitted  or  discharged,  and  is  broad  enough  to  include 
brick  kilns." 

§  150.  Power  of  municipality  to  regulate  emission  of  smoke. — 
The  power  which  a  legislature  possesses  to  declare  that  a  nuisance 
which  was  not  one  at  common  law  may  be  delegated  to  a  munici- 
pality.80 So,  it  1st  competent  for  a  city  to  pass  a  reasonable  ordi- 
nance looking  to  the  suppression  of  smoke  when  it  becomes  a  nuis- 
ance to  property  or  health,  or  annoying  to  the  public  at  large,  pro- 
vided such  ordinance  is  not  in  excess  of  the  powers  conferred  upon 
the  municipality.81  So,  an  ordinance  as  follows:  "  The  owner  or 
owners  of  any  boat  or  locomotive  engine,  and  the  person  or  persons 
employed,  as  engineer  or  otherwise,  in  the  working  of  the  engine 
or  engines  in  said  boat,  or  in  operating  such  locomotive,  and  the 
proprietor,  lessee  or  occupant  of  any  building,  who  shall  permit 
or  allow  dense  smoke  to  issue  or  be  emitted  from  the  smoke  stack 
of  any  such  boat  or  locomotive,  or  the  chimney  of  any  building, 
within  the  corporate  limits,  shall  be  deemed  and  held  guilty  of 

79.  16  App.  D.  C.  428.  "  46  Am.  St.  R.  893;  Dillon  on  Munic. 

80.  Glucose   Refining    Co.    v.    City  ,    Corp.   (4th  Ed.)   §  608. 

of  Chicago,  138  Fed.  209,  217;  Lan-  .  81.  St.  Louis  v.  Heitzeberg  Pack- 
gel  v.  Bushnell,  197  111.  26,  63  N.  E.  '  ing  &  P.  Co.,  141  Mo.  375,  42  S.  VV. 
1086,  58  L.  R.  A.  266;  Harmon  v.  '954,  39  L.  R.  A.  551,  64  Am.  St.  R. 
Lewiston,  153  111.  313,  38  N.  E.  628,     .516.       See,    also,    sections    following 

herein. 

194 


Smoke,  Fumes  and  Gases.  §  150 

creating  a  nuisance,  and  shall  for  every  such  offense,  be  fined  in  a 
sum  not  less  than  five  dollars  nor  more  than  fifty  dollars,"  is  valid 
and  not  objectionable  on  the  ground  that  it  excepts  certain  persons 
and  property  from  its  operation  and  therefore  conflicts  with  a  con- 
stitutional provision  that  the  legislature  shall  not  pass1  any  local  or 
special  laws  in  certain  enumerated  cases,  among  which  is  "  grant- 
ing to  any  corporation,  association  or  individual  any  special  or 
exclusive  privilege  or  immunity  or  franchise  whatever."     Such,  an 
ordinance  is  general   in   its  provisions,  embraces   all  persons  or 
property  within  the  limits  of  the  corporation  and   imposes  the 
same  penalty  upon  all  persons  maintaining  a  nuisance  in  violation 
of  its  provisions.82    And  an  ordinance  making  "  any  owner,  agent, 
lessee  or  manager  of  any  building  or  other  structure  in  the  city  of 
Detroit"  liable  to  a  penalty  for  causing  the  emission  of  dense  smoke 
to  be  emitted  from  such  a  structure  and  which  excepts  dwelling- 
houses  and  steamboats  from  its  operation  is  not  invalid  because  of 
such  exception,  as  being  an  unreasonable  discrimination  between 
classes  of  persons  residing  within  the  same  municipality.83     And 
where  a  municipality  has  power  to  provide  that  dense  smoke  shall 
in     certain     instances     constitute     a     nuisance,     the     ordinance 
will     not     be     invalid     from     the     mere     fact     one     may     be 
able     to     comply     with     it    without     making     any     change     in 
his     property    while     another     must    make    certain     alterations 
to    conform    thereto.84     Such    an    ordinance    making    "  the    pro- 
prietor, lessee  or  occupant  "  of  a  building  responsible  for  the  emis- 
sion of  smoke  therefrom  has  been  held  not  to  render  the  servant 
of  the  owner  responsible,  the  expression  of  one  thing  being  held  to 
exclude  another.85     A  grant  of  powers  to  a  municipality  must  be 
strictly  construed.86     And  an  ordinance  which  is  in  excess  of  the 
powers  conferred  on  a  city  to  declare  and  abate  nuisances,  and 

82.  Harmon    v.    City    of    Chicago,  84.  Glucose  Refining  Co.  v.  City  of 
110  111.  400,  51  Am.   Rep.  698;  Glu-       Chicago,  138  Fed.  209,  217. 

cose  Refining  Co.  v.  City  of  Chicago,  85.  St.  Paul  v.  Johnson,  69  Minn. 

138  Fed.  209.  184,  72  N.  W.  64. 

83.  People  v.  Lewis,  86  Mich.  273,  86.  Sigler  v.  Cleveland,  3  Ohio  N. 
49   N.   W.    140.        Compare   State   v.  P.  119,  1  Ohio  L.  D.  166. 

Sheriff  of  Ramsay  County,  84  Minn. 
236,  51  N.  W.  112,  31  Am.  St.  R. 
650. 

195  I 


§  151  Smoke,  Fumes  and  Gases. 

whicli  is*  wholly  unreasonable,  will  not  be  upheld.87  In  this  case  it 
was  said  by  the  court:  "  Now  this  ordinance  would  punish  every 
housekeeper  who  kindled  a  fire  to  cook  his  or  her  morning  meal, 
or  to  warm  the  house.  Every  replenishing  of  the  furnace,  whether 
in  the  heart  of  the  business  centres  or  upon  the  remote  western 
boundary  of  the  city,  would  alike  subject  the  owner  to  punish- 
ment. No  exception  whatever  is  made  as  to  time  or  quantity. 
When  it  is  considered,  and  it  must  be  by  this  court,  that  St.  Louis 
has  attained  its  growth  in  population  and  wealth  in  a  large  degree 
from  the  fact  of  its  proximity  to  the  great  mines  of  bituminous 
coal  which  lie  at  its  very  door,  and  that  this  fuel  has  enabled  it  to 
become  a  great  manufacturing  city,  and  that  this  soft  coal  is 
peculiarly  liable  to  produce  this  objectionable  dense  smoke,  it 
seems  to  us  that  thisi  ordinance  which,  makes  no  reasonable  allow- 
ance for  the  regulation  of  this  smoke,  but  essays  in  advance  of  any 
known  device  for  preventing  it,  to  punish  all  who  produce  it  to 
any  degree  whatever,  is  wholly  unreasonable.88  So  it  is  decided  in 
a  case  in  Minnesota  that  power  conferred  upon  a  city  to  remove 
•or  abate  nuisances  injurious  to  public  health  or  safety  refers  to 
things  which  are  nuisances  per  se,  and  not  to  those  which  may  or 
may  not  become  nuisances,  and  confers  no  power  on  a  city  to  de- 
fine and  declare  what  shall  constitute  a  nuisance,  and  that  an  ordi- 
nance declaring  the  emission  of  dense  smoke  from  chimneys  and 
smoke  stacks  to  be  a  public  nuisance  is  unauthorized.89 

§   151.   Same  subject — Words  "Dense  smoke"  construed. — 

The  term  "  dense  smoke,"  as  used  in  an  ordinance  prohibiting  the 
emission  thereof,  will  be  construed  as  commonly  understood.  A 
court  will  not  indulge  in  any  subtle  distinctions  as  to  what  is 
meant  thereby,  but  will  construe  it  as  ordinarily  understood  by 
people  in  general.90 

87.  St.   Louis  v.  Heitzeberg  Pack-  89.  St.  Paul  v.  Gilfillan,  36  Minn, 
ing  &  P.  Co.,  141  Mo.  375,  42  S.  W.       298,  31  N.  W.  49. 

954,  39  L.  R.  A.  551,  64  Am.  St.  R.  90.  Harmon    v.    City    of    Chicago, 

516.  110  111.  400,  51  Am.  Rep.  698. 

88.  Per  Gantt,  J. 


196 


Smoke,  Fumes  and  Gases.  §§   152,  153 

§  152.  Ordinance  limiting  emission  of  smoke  from  a  chimney 
to  "  three  minutes  in  any  hour  "  construed. — Where  by  ordi- 
nance the  emission  of  dense  smoke  from  a  chimney  or  simoke  stack 
of  any  building,  factory,  mill,  works  or  other  establishment  is 
limited  to  three  minutes  in  any  hour  of  the  day  or  night  (except- 
ing in  cases  where  the  fire  box  is  being  cleaned  out  or  new  fire 
built  therein,  in  which  case  the  limit  shall  be  six  minutes),  it  will 
not  be  regarded  as  operating  unequally  and  therefore  unconstitu- 
tional from  the  fact  that  a  chimney  for  one  establishment  may 
discharge  smoke  for  less  fire  boxes  than  a  chimney  for  another 
where  the  ordinance  provided  that  no  prosecution  can  be  had 
against  plants  installed  prior  to  the  passage  of  the  ordinance  until 
the  expiration  of  a  year  from  its  passage,  in  order  to  rebuild  and 
re-equip  the  same,  provided  the  owner  commences  at  once  his  plans 
so  to  do.91  The  court  said  in  this  case :  "  It  is  seen  complainant 
had  a,  year  in  which  to  construct  its  plant  so  as  to  enable  it  to 
comply  with  the  ordinance,  and  it  nowhere  appears  that  complain- 
ant, by  some  alterations  in  its  plant,  could  not  comply  with  the 
provisions  thereof.  If  it  is  to  be  admitted  that  each  fire  box  is  to 
have  the  privilege  of  smoking  one-twentieth  of  an  hour,  then  it 
is  manifest  the  ordinance  would  permit  complainant's  chimney  to 
smoke  practically  all  the  time,  which  would  defeat,  of  course,  the 
object  of  the  ordinance.92 

§  153.  Ordinance  regulating  smoke  from  tug  boats — Not  vio- 
lation of  commerce  clause  of  Constitution.—  A  city  may  by  ordi- 
nance prohibit  the  emission  of  dense  smoke  from  tug-boats  in  its 
harbor,  and  such  an  ordinance  is  not  in  violation  of  the  commerce 
clause  of  the  Federal  constitution.  This  question  arose  in  Har- 
mon v.  City  of  Chicago,93  in  which  it  was  decided  that  an  ordi- 
nance prohibiting  the  emission  of  dense  smoke  from  any  tug-boat 
plying  in  the  Chicago  river  was  not  in  violation  of  the  provision  of 
the  Federal  Constitution  conferring  upon  Congress  the  power  to 
regulate  commerce.  It  was  said  by  the  court  in  this  case :  "  This 
objection  implies  a  misconception  of  the  scope  and  purpose  of  the 
ordinance.     Undoubtedly  these  tug-boats  are  in  a  limited  sense 

91.  Glucose  Refining  Co.  v.  City  of  92.  Per  Kohlsaat,  C.  J. 

Chicago,  138  Fed.  209,  216.  93.  110  111.  400,  51  Am.  Rep.  698. 

197 


§  153  Smoke,  Fumes  and  Gases. 

engaged  in  commerce  among  the  States,  and  perhaps  with,  foreign 
nations.  .  .  .  But  does  this  ordinance  impose  any  restraint  on 
the  use  of  such  vessels,  although  engaged  in  general  commerce, 
other  than  is  consistent  with  law  ?  It  is  thought  it  does  not.  At 
most  it  purports  only  to  regulate  their  use  in  such  manner  as  may 
not  produce  effects  detrimental  to  property  and  business,  nor  be- 
come a  personal  annoyance  to  the  public  at  large  within  the  city, 
and  that  is  allowable  to  be  done.  Two  sources  of  power  for  regu- 
lating the  use  of  steam  tug-boats  in  the  harbor  and  river  are  dis- 
coverable :  First,  the  city,  by  direct  grant  of  power  from  the  State, 
has  the  right  to  make  regulations  in  regard  to  the  use  of  harbors, 
towing  of  vessels,  opening  and  passing  of  bridges ;  and  second,  the 
police  power  inherent  in  the  State, — that  power  under  which 
everything  necessary  to  the  protection  of  the  property  of  the  citi- 
zen, and  the  health  and  comfort  of  the  public  may  be  done.  Con- 
trolling the  use  of  tug-boats  in  towing  in  and  out  vessels  to  and 
from  the  harbor,  is  in  no  sense  in  conflict  with  the  power  existing 
in  Congress  to  regulate  commerce  with  foreign  nations  and  among 
the  several  States.  That  is  very  far  from  an  attempt  to  regulate 
commerce.  .  .  .  Regulating  the  use  of  fuel,  or  what  is  the 
same  thing,  requiring  owners  or  managers  of  tug-boats  to  so  use 
their  vessels  as  not  to  create  a  dense  smoke,  which  it  is  conceded 
would  be  an  annoyance  to  the  public  at  large,  is  in  no  sense  im- 
posing any  restraints  upon  commerce,  nor  does  it  in  any  manner 
conflict  with  the  power  of  Congress  under  what  is  called  the  "Com- 
merce Clause  "  of  the  Constitution  of  the  United  States.  .  .  . 
The  existence  of  a  power  in  Congress  to  control  the  harbor,  and 
the  towing  in  and  out  of  merchant  vessels  engaged  in  commerce 
with  foreign  nations,  and  with  the  several  States,  does  not,  of 
itself,  prevent  local  legislation  for  the  security  of  property,  and 
the  health,  comfort  and  convenience  of  the  people  in  a  munici- 
pality. It  is  only  repugnant  and  interfering  State  legislation  that 
must  give  way  to  the  paramount  laws  of  Congress  constitutionally 
enacted."  94 

§   154.  Municipal  ordinance  as  to  smoking  in  street  cars. — 

A  municipality  may  by  ordinance  make  smoking  upon  street  cars  a 

•4.  Per  Mr.  Justice  Scot. 

1981 


Smoke,  Fumes  and  Gases.  §§   155,  156 

nuisance.95  In  this  case  the  court  said :  "  There  is  no  doubt  of  the 
fact  that,  smoking  in  the  street  cars  in  t'he  city  of  New  Orleans 
had  caused  to  the  great  majority  of  people  using  them  material 
annoyance,  inconvenience  and  discomfort.  This1  is  particularly 
so  in  the  winter  season,  when  the  cars  are  closed.  There  is  not 
only  discomfort,  but  positive  danger  to  health  from  the  contami- 
nated air.  The  record  established  these  facts.  Smoking  in  itself 
is  not  to  be  condemned  for  any  reason  of  public  policy.  It  is 
agreeable  and  pleasant,  almost  indispensable,  to  those  who  have 
acquired  the  habit,  but  it  is  distasteful  and  offensive,  and  some- 
times hurtful  to  those  who  are  compelled  to  breathe  the  atmosphere 
impregnated  with  tobacco  in  close  and  confined  places.  There  are 
many  other  habits  in  manners  and  conduct  which  in  some  locali- 
ties and  places  are  not  objectionable  to  the  public,  but  when  com- 
mitted elsewhere  may  become  offensive,  and  the  subject  of  penal 
municipal  legislation.  Smoking  may  be  classed  among  these  sub- 
jects of  legislation  by  the  municipal  corporation."96 

§  155.  Sufficiency  of  notice  to  abate — English  Public  Health 
Act. — Under  the  English  Public  Health  Act,97  as  to  the  giving  of 
a  notice  to  abate  a  nuisance  and  providing  that  the  notice  required 
to  abate  the  same  shall  be  to  the  person  causing  the  nuisance  "  to 
abate  the  same  within  a.  time  to  be  specified  in  the  notice  and  to 
execute  such  works  and  do  such  things  as  may  be  necessary  for 
that  purpose,"  a  notice  requiring  a  person  to  abate  a  nuisance 
consisting  of  the  emission  of  black  smoke  from  his  factory  chim- 
ney without  specifying  the  works  to  be  done,  has  been  held  suffi- 
cient, no  works  being  required  to  be  done  but  only  the  black  smoke 
stopped.98 

§  156.  Damages  recoverable. — In  an  action  for  damages  for 
nuisance  caused  by  smoke  and  fumes  causing  substantial  annoy- 
ance and  discomfort  to  one  in  the  occupation  and  use  of  his  dwell- 
ing, it  has  been  said  that  it  is  impossible  to  lay  down  any  specific 

95.  State  of  Louisiana  v.  Heiden-  97.  Act  1875,  §  94. 

hain,  42  La.  Ann.  483,  7  So.  621,  21  98.  Millard  v.  Wastall  (Q.  B.),  77 

Am.  St.  R.  388.  Law  T.  R.  692,  67  L.  J.  Q.  B.,  N.  S. 

96.  Per  McEnery,  J.  277. 

199 


§  156  Smoke,  Fumes  and  Gases. 

rule  to  guide  the  jury  in  their  estimate,  but  that  they  may  con- 
sider the  injury  to  the  reasonable  use  of  the  property,  the  effect 
upon  the  health  of  the  plaintiff  and  his  family,  and  his  actual 
physical  discomfort,  the  amount  to  be  determined  by  the  jury  in 
their  best  judgment  and  soundest  discretion."  This  question  is 
considered  in  a  recent  case  in  New  York,  which  was  an  action  by 
the  proprietors  of  a  hotel  to  recover  damages  resulting  from  the 
maintenance  of  a  nuisance  by  the  defendant,  in  which  it  appeared 
that  the  defendant  had  constructed  and  put  in  operation  an  electric 
lighting  and  power  plant  near  the  hotel  of  the  plaintiff.  The 
complaint  alleged  that  the  defendant  had  so  constructed  and  oper- 
ated its  machinery  as  to  discharge  upon  the  premises  of  the  plain- 
tiff great  quantities  of  soot,  cinders,  ashes,  noisome  gases,  unpleas- 
ant odors,  and  steam  and  water  condensing  from  steam,  thus  foul- 
ing and  injuring  the  premises  of  the  plaintiff  and  the  furniture 
therein.  A  nuisance  from  noise,  jar  and  vibration  was  also 
alleged,  disturbing  the  sleep  of  the  inmates  of  the  hotel  and  in- 
juriously affecting  the  quiet  and  peaceful  enjoyment  and  use  by 
them  of  their  apartments.  Upon  the  trial  of  the  action  the  defend- 
ant requested  the  court  to  charge  that:  "  The  measure  of  damages 
applicable  to  a  case  of  this  kind  is  the  actual  diminution  in  rental 
by  reason  of  defendant's  acts,"  and  also  that  "  loss  of  income  is  not 
provable  as  an  element  of  damage."  The  first  request  was  refused 
upon  the  ground  that  though  diminution  of  rental  value  is  an  ele- 
ment to  be  considered  and  for  which  compensation  might  be  given, 
yet  the  recovery  was  not  limited  to  an  allowance  therefor  where  it 
appeared  that  evidence  was  given  in  support  of  the  complaint 
showing  that  the  curtains  and  furniture  of  the  hotel  became  soiled, 
that  new  upholstering  was  necessary  much  oftener  than  before  the 
plant  became  a  nuisance,  and  that  the  service  of  an  extra  man  be- 
came necessary  to  do  the  cleaning,  whose  services  cost  from  twenty 
to  twenty-five  dollars  per  month.     As  to  the  second  request,  it  was 

99.  Farier    v.     American     Car    &  emoke,    gases,    noise    and    vibrations, 

Foundry  Co.,  24  Pa.  Super.  Ct.  579.  he   has  an  election  whether  to  have 

Examine    Hoffman    v.    Edison    Elec.  his  damages  measured  by  the  depre- 

Illum.  Co.,  87  App.  Div.  (N.  Y.)  371,  ciation    in    the    rental    value   of   the 

84  N.  Y.  Supp.  437,  holding  that,  in  premises  as  a  whole  or  by  a  loss  in 

an  action  by  a  tenant  to  recover  dam-  the  usable  value  of  the  premises, 
ages    for    a    nuisance    consisting    of 

200 


Smoke,  Fumes  and  Gases.  §  156 

decided  that  as  there  was  evidence  showing  depreciation  in  the 
rent  of  the  rooms  in  the  hotel  which  was  competent  upon  the  ques- 
tion whether  there  was  a  diminution  in  the  rental  value  of  the 
premises  it  was  also  properly  refused.100  Again,  in  an  action  by  a 
lessee  to  recover  damages  for  a  nuisance  caused  by  an  electric 
lighting  plant  and  consisting  of  smoke,  gases,  noise  and  vibrations, 
the  plaintiff's  right  to  recover  will  not  be  affected  by  the  fact  that 
he  took  his  lease  subsequent  to  the  creation  of  the  nuisance.101 

100.  Pritchard  v.  Edison  Electric  101.  Hoffman    v.    Edison    Electric 

Ilium.  Co.,   179  N.  Y.  364,  72  N.  E.  Ilium.  Co.,  87  App.  Div.  (N.  Y.)  371, 

243,  affirming  92  App.  Div.   178,  87  84  N.  Y.  Supp.  437. 
N.  Y.  Supp.  225. 


201 


CHAPTER  IX. 

Noisome  Smells. 

Section  157.  Noisome  smells  as  a  nuisance. 

158.  When  smells  constitute  a  nuisance. — Instances. 

159.  When  not  a   public  nuisance. — Private  road. — Highway. 

160.  Causing  smells  to  arise  from  another's  land. 

161.  Though  business   lawful  smell  a  nuisance. 

162.  Injury  must  be  real. 

163.  Effect  upon  persons  of  ordinary  health  and  sensitiveness  the  test. 

164.  That  others  contribute  to  injury  no  defense. 

165.  Effect  of  locality. 

166.  May  be  nuisance  though  not  injurious  to  health. 

167.  Question  of  reasonable  care  immaterial. 

168.  Though  smells  a  public  nuisance  individual  may  sue. 

169.  Liability  of  municipal   corporation. 

170.  Measure  of  damages. 

171.  Act  authorizing  board  of  health  to  abate  public  nuisances  con- 

strued. 

172.  Injunction   order. — How  construed. 

173.  Where  evidence  conflicting. — In  case  of  appeal. 

§  157.  Noisome  smells  as  a  nuisance. — 'Where  the  air  is  cor- 
rupted by  noisome  smells  so  as  to  substantially  interfere  with  the 
ordinary  comforts  of  human  existence  or  to  materially  diminish 
the  value  of  another's  property,  such  smells  constitute  a  nuisance.1 

1.  Winslow     v.     Bloomington,     24-  R.    840;      Waters-Pierce    Oil    Co.    v. 

111.  App.  647;   Bohan  v.  Port  Jervis  Cook,  6  Tex.  Civ.  App.  573,  26  S.  W. 

Gaslight  Co.,  122  N.  Y.  18,  33  N.  Y.  96;   Mcintosh  v.   Carritte,  N.  B.  Eq. 

St.  R.  246,  25  N.  E.  246,  9  L.  R.  A.  Cas.  406. 

711,  affg.  45  Hun,  257,  10  N.  Y.  St.  "It  is  an  elementary  law  that 

R.    374;   Catlin    v.    Paterson,    10    N.  the  corrupting  the  air  of  a  man's 

Y.    St.   R.    724;    Gavigan   v.   Atlantic  dwelling    with    noisome    smells    is    a 

Ref.   Co.,   186   Pa.   604,  40  Atl.   834;  nuisance,   for   light  and   air   are  two 

Pottstown  Gas  Co.  v.  Murphy,  39  Pa.  indispensable      requisites      to      everj 

257;  Dutchtown    Sulphur,    Copper   &  dwelling."        Caro     v.      Metropolitan 

I.  Co.  v.  Barnes   (Tenn.,  1900),  60  S.  Elevated  Ry.  Co.,  46  N.  Y.  Super.  Ct, 

W.  593;  Fort  Worth  v.  Crawford,  74  138,  165,  per  Speir,  J. 
Tex.  404,   12  S.   W.  52,   15  Am.  St. 

202 


Noisome  Smells.  §  157 

"  Unpleasant  odors,  from  the  very  constitution  of  our  nature, 
render  us  uncomfortable,  and  when  continued  or  repeated  make 
life  uncomfortable.  To  live  comfortably  is  the:  chief  and  most 
reasonable  object  of  men  in  acquiring  property  as  the  means  of 
obtaining  it;  and  any  interference  with  our  neighbor  in  the  com- 
fortable enjoyment  of  life,  is  a  wrong  which  the  law  will  redress. 
The  only  question  is  what  amounts  to  that  discomfort  from  which 
the  law  will  protect."2  So,  where  disagreeable  odors  are  sent  forth 
from  adjoining  premises  and  plaintiff  is  prevented  from  finding 
tenants  for  his  house  on  account  thereof,  this  is  sufficient  proof  of 
special  damages  to  entitle  him  to  maintain  an  action  to  recover 
compensation  therefor.3  Where  the  smells  are  caused  by  the  con- 
duct of  a  business  or  trade  it  is  immaterial  whether  the  proprietor 
of  the  same  was1  guilty  of  negligence,  the  question  not  being  one 
of  negligence  or  no  negligence.4  Nor  is  it  any  defense  that  the 
business  could  not  be  carried  on  without  producing  such  smells.5 
Nor  would  it  be  anv  defense  to  show  that  others  were  violating  the 
law.  So  it  was  held  proper  to  exclude  testimony  offered  by  the 
defendant  in  an  action  for  nuisance  caused  by  odors  from  the 
refuse  of  his  creamery  as  to  how  the  management  of  the  creamery 
maintained  by  him  and  the  premises  about  it  compared  with  the 
management  of  other  creameries  and  the  premises  about  them.0 
In  a  petition,  however,  for  an  injunction  to  restrain  an  intended 
act  as  a  nuisance,  as  where  it  is  sought  to  restrain  the  establish- 
ment of  a  dairy,  on  the  ground  that  it  will  cause  noxious  and  of- 
fensive smells,  facts  should  be  stated  so  that  the  consequences  of 
such  act  may  be  determined  by  the  court  and  it  may  see  and 
decide  that  a  nuisance  may  result.7  And  it  has  been  held  that  a 
preliminary  injunction  restraining  the  conduct  of  a  business  be- 
cause of  offensive  and  noxious  odors  resulting  therefrom  will  not 

2.  Cleveland  v.  Citizens'  Gas  5.  Ducktown  Sulphur,  Copper  &  I. 
Light  Co.,  20  X.  J.  Eq.  201,  205,  per  Co.  v.  Barnes  (Tenn.,  1900),  60  S. 
The  Chancellor.  W.  593. 

3.  Cropsey  v.  Murphy,  1  Hilt.  (N.  6.  Fisher  v.  Zumwalt,  128  Cal. 
Y.)    126.  493,  61  Pac.  82. 

4.  Gavigan  v.  Atlantic  Ref.  Co.,  7.  McDonough  v.  Robbens,  60  Mo. 
186    Pa.    604,   40    Atl.    834.        See   §  App.  156,  1  Mo.  App.  Rep.  78. 

92,  post. 


203 


§  158  Noisome  Smells. 

bo  granted  where  it  appears  that  the  plaintiff  has  sustained  the 
same  annoyance  and  discomfort  for  a  long  time  and  that  the  de- 
fendant has  a  large  amount  of  capital  invested  in  his  business, 
which  would  be  ruined  by  the  granting  of  the  injunction.8  Again, 
in  an  action  to  recover  for  a  nuisance  where  the  only  question  is 
whether  defendant's  factory  filled  the  surrounding  air  with  of- 
fensive smells  thereby  creating  a  nuisance  which,  specially  injured 
the  plaintiff,  it  is  held  to  be  improper  to  receive  in  evidence  ordi- 
nances prohibiting  a  person  from  permitting  the  accumulation  of 
offensive  matter  upon  his  premises  or  to  conduct  a  certain  business 
in  an  offensive,  unclean,  and  defective  manner.9 

§    158-  When    smells    constitute    a    nuisance — Instances. — A 

nuisance  has  been  held  to  exist  in  the  case  of  noxious  smells  from 
the  operation  of  a  fertilizer  factory,10  elevated  railway,11  slaughter 
house,12  rendering  and  fat  boiling  establishment,13  bone  burning 
establishment,14  smelting  works,15  garbage  plant,16  and  brick  burn- 
ing.17 So,  where  oil  used  for  fuel  is  negligently  permitted  to 
escape  into  a  sewer  by  leakage  through  the  soil  and  generate  gases 
which  escape  through  a  man  hole  and  cause  damage  to  a  bakery, 
the  one  permitting  such  leakage  will  be  responsible  for  the  injury 

8.  Sellers    v.    Parvis    &    Williams       Murphey,     1     Hilt.      (N.     Y.)      126; 
Co.,  30  Fed.  164.  Smith  v.  Curnmings,  2  Pars.  Eq.  Cas. 

9.  Danker    v.    Goodwin    Mfg.    Co.,       (Pa.)  92.     See  §  116,  herein. 

102  Mo.  App.  723,  77  S.  W.  338.  14.  Meigs  v.  Lister,  23  N.  J.  Eq. 

10.  Susquehanna   Fertilizer   Co.  v.       199. 

Malone,  73  Md.  268,  20  Atl.  900,  25  15.  Appeal   of   Pennsylvania   Lead 

Am.  St.  R.  595,  9  L.  R.  A.  737 ;  Evans  Co.,  96   Pa.   116,  42  Am.   Rep.   534; 

v.  Reading  Chemical  F.  Co.,  160  Pa.  Stenett  v.  Northport  Mining  &  S.  Co., 

209,  28  Atl.  702.     See  §  118,  herein.  30   Wash.    164,   70   Pac.   266.     See    § 

11.  Caro     v.     Metropolitan     Elev.  132,  herein. 

Ry.  Co.,  46  N.  Y.  Super.  Ct.  138.  16.  Munk    v.    Columbus    Sanitary 

12.  Rhoades    v.    Cook,    122    Iowa,       Works  Co.,  7  Ohio  N.  P.  542,  5  Ohio 
336,  98  N.  W.  122;  Babcock  v.  New       S.  &  C.  P.  Dec.  548. 

Jersey   Stockyard   Co.,   20   N.   J.   Eq.  17.  Fogarty      v.      Junction      City 

296.     See  Bishop  v.  Banks,  33  Conn.  Pressed   Brick   Co.,   50  Kan.   478,   31 

118,  87  Am.  Dec.  197;  Attorney-Gen-  Pac.    1052,    18   L.   R.   A.   756;  Camp- 

eral   v.    Steward,   20   N.   J.   Eq.   215.  bell  v.  Seaman,  63  N.  Y.  568,  20  Am. 

See  §§  126-129,  herein.  Rep.   567,  affg.   2  Thomp.  &  C.   231. 

13.  Millhiser  v.  Willard,  96  Iowa,  See  §  111,  ante,  herein. 
327,    65    N.     W.    325;      Cropsey    v. 

204 


Noisome  Smells.  §  158 

so  caused,  especially  where  the  discharge  of  refuse,  noxious  liquids 
or  drippings  into  a  sewer  is  forbidden  by  a  city  ordinance.18    And 
where  a  dam  across  a  stream  is  erected  which  causes  the  water  to 
stagnate  and  emit  offensive  odors,  causing  the  entire  neighborhood 
to  become  sickly,  it  will  constitute  a  public  nuisance  for  which  an 
indictment  will  lie.19    And  the  discharge  of  refuse  from  a  canning 
factory  into  a  stream  of  water  may  be  enjoined  as  a  nuisance 
where  it  is  offensive  in  smell  and  dangerous  to  the  health  of  the 
public.20     Again,  a  privy  will  be  a  nuisance  where  it  clearly  ap- 
pears from  the  facts  that  persons  in  the  neighborhood  are  ren- 
dered uncomfortable  to  a  substantial  degree  by  the  smells  there- 
from, but  where  the  evidence  does  not  show  that  it  has  been  so  kept 
as  to  render  it  a  nuisance,  the  maintenance  thereof  will  not  be  en- 
joined.21    And  where  a  railroad  company  placed  ties  on  its  right 
of  way  in  front  of  plaintiff's  residence  and  allowed  water  to  collect 
about  them  and  cause  decay  and  decomposition  and  filthy  and  dis- 
agreeable odors,  it  was  held  that  it  was  guilty  of  creating  a  nuis- 
ance for  which  it  was  liable  in  damages.22     And  where,  by  the 
cooking  of  offal  in  a  vat  noxious  and  nauseating  odors  were  emit- 
ted, which  could  be  detected  more  than  a  quarter  of  a  mile  away, 
and  rendered  the  plaintiff's  dwelling  unfit  for  habitation,  he  was 
held  to  be  entitled  to  an  injunction  against  the  continuance  of  the 
nuisance.23     And  a.  person  may  be  enjoined  from  maintaining  a 
tobacco  dry  house  in  the  rear  of  an  office  building,  where  noxious 
and  offensive  odors  therefrom  which  permeate  the  building  are  ex- 
ceedingly   annoying   and    disagreeable,    and    inconvenient,    detri- 
mental to  the  health  of  the  owner  and  occupants  of  such  building 
and  seriously  affect  the  comfortable  enjoyment  of  the  premises.24 
And  where  a  cotton  mill  company  maintained  issues  and  outlets 
from  the  privies  and  cesspools  of  its  factory  into  the  public  gutters 

18.  Brady  v.  Detroit  Steel  &  S.  22.  Houston,  E.  &  W.  T.  Ry.  Co. 
Co.,  102  Mich.  277,  CO  N.  W.  687,  26  v.  Reasonover  (Tex.  Civ.  App.,  1904), 
L.  R.  A.  175.  81  S.  W.  329. 

19.  State  v.  Rankin,  3  S.  C.  438,  23.  Wilcox  v.  Henry  (Wash., 
16  Am.  Rep.  737.  1904),  77  Pac.  1055. 

20.  Butterfoss  v.  Board  of  Health,  24.  Hundley  v.  Harrison,  123  Ala. 
40  N.  J.  Eq.  325.  292,  26  So.  294. 

21.  Iliff    v.    School    Directors,    45 
111.  App.  419. 

205- 


§§  159,  160  Noisome  Smells. 

of  the  city,  through  which  offensive,  dangerous-  and  injurious  mat- 
ter flowed,  to  the  detriment  of  the  public  health  it  was  held  to  be  a 
nuisance  which  might  be  enjoined  on  a  bill  by  the  board  of  health 
of  the  city.25  But  in  a  case  against  the  city  of  New  York  to  re- 
strain the  maintenance  of  a  dump  by  the  city  it  was  decided  that 
though  there  wasi  some  evidence  that  smells  arose  from  the  dump 
a  finding  that  it  was  a  nuisance  was  not  justified,  it  not  appearing 
how  pungent  or  offensive  the  smell  was  or  how  far  it  extended,  or 
that  plaintiff  was  affected  by  it.26 

§  159.  When  not  a  public  nuisance—Private  road — Highway. 

— Noxious  smells  or  odors  will  not  constitute  a  public  nuisance  to 
persons  passing  along  a  private  country  road,  and  it  is  essential  to 
show  that  the  road  used  was  a  public  highway  in  order  to  sustain 
an  indictment,27  And  it  has  been  decided  in  the  case  of  a  conviction 
for  keeping  a  slaughter  house  in  such  a  manner  as  to  become  a 
public  nuisance  to  travelers  upon  a  public  road  that  proof  that  the 
smell  is  offensive  to  a  few  individuals  will  not  constitute  it  a 
public  nuisance  in  the  absence  of  proof  that  it  is  an  obstruction  to 
a  safe  use  of  the  road.28 

§  160.  Causing  smells  to  arise  from  another's  land.—  One  who 

causes  noxious  smells  to  arise  from  the  land  of  another  may  be 
liable  for  a  nuisance.29  So  the  throwing  of  slops  and  filth  by  a  per- 
son onto  another's  premises',  creating  noisome  and  offensive  odors, 
constitutes  a  nuisance.30  And  one  may  be  enjoined  from  permit- 
ting refuse  from  a  creamery  to  flow  onto  the  land  of  another, 
where  it  becomes  thickened  and  emits  a  stench.31    And  it  has  been 

25.  Board  of  Health  v.  Maginnis  28.  Phillips  v.  State,  66  Tenn. 
Cotton  Mills,  46  La.  Ann.  806,  15  So.  151.  As  to  slaughter  houses,  see  §§ 
164.     As    to    cotton    gin    see    §    113,       126-129,  herein. 

herein.  29.  Carland    v.   Aurin,    103    Tenn. 

26.  Coleman  v.  City  of  New  York,       555,  53  S.  W.  940. 

70  App.  Div.   (N.  Y.)   218,  75  N.  Y.  30.  Beckley  v.  Skroh,  19  Mo.  App. 

Supp.  342,  affirmed  in  173  N.  Y.  612.  75. 

See  Cornell  v.   New  York,   20  N.   Y.  31.  Price     v.     Oakfield     Highland 

Supp.  314.  Creamery  Co.,  87  Wis.  536,  58  N.  W. 

27.  State  v.  Wolfe,  112  N.  C.  889,  1039,  24  L.  K.  A.  333. 
17  S.  E.  528,  citing  2  Bish.  Cr.  Law, 

§   1266,  1. 

206 


Noisome  Smells.  §  161 

held  that  a  person  is  liable  for  noxious  vapors  caused  by  his  filling 
his  lot  with  earth  and  garbage,  thereby  obstructing  the  natural 
drain  of  surface  waters  and  making  a  stagnant  pond.32 

§  161.  Though  business  lawful  smell  a  nuisance. —  Though  a 
business  may  be  lawful  in  itself,  yet  if  it  causes  noxious,  offensive 
and  injurious  smells  it  may  be  restrained  at  the  suit  of  one  who 
has  been  injured  thereby.33  "  The  general  proposition  is  that  the 
citizen  has  the  right  to  be  protected  against  annoyances,  noxious 
gases,  etc.,  which  materially  lessen  the  comfort  and  value  of  his 
home,  and  if  he  cannot  be  protected  against  such  annoyances  by 
any  one  that  may  choose  to  erect  a  business  near  it,  he  will  be 
driven  from  his  home  unless  he  is  wealthy  enough  to  buy  all  the 
land  around  him.  The  law  takes  care  that  lawful  and  useful  busi- 
nesses shall  not  be  put  a  stop  to  on  account  of  any  trifling  or  imagi- 
nary annoyance,  such  as  may  offend  the  taste  or  disturb  the  nerves 
of  a  fastidious  or  over-refined  person.  But,  on  the  other  hand,  it 
does  not  allow  anyone,  whatever  his  circumstances  or  conditions 
may  be,  to  be  driven  from  his  home  or  to  be  compelled  to  live  in  it 
in  positive  discomfort,  although  caused  by  a  lawful  or  useful  busi- 
ness carried  on  in  his  vicinity.  The  maxim  '  sic  utere  tuo  ut 
alienam  non  laedas '  expresses  the  well-established  rule."34  So, 
upon  the  question  of  whether  a  tannery  is  a  nuisance  the  fact  that 
the  business  is  a  lawful  one  is  immaterial  for  it  becomes  a  nuis- 
ance where  the  smells  therefrom  substantially  impair  the  comfort 
and  enjoyment  of  adjacent  owners.35  So,  though  the  business  of 
manufacturing  a  fertilizer  from  the  bodies  of  dead  animals,  offal 
and  other  matter  may  be  lawful,  it  may  be  enjoined  at  the  suit  of 
an  adjoining  owner  where  the  occupancy  of  his  property  has  been 
rendered  inconvenient,  annoying  and  unhealthy  on  account  of  the 
noxious  odors  arising  therefrom.36 

32.  Carland   v.    Aurin,    103    Tenn.       I.  Co.  v.  Barnes   (Term.,  1900),  60  S. 

33.  Barkan   v.    Knecht,    10    Wkly.       W.  593. 

Law  Bull.  342,  9  Ohio  Dec.  66;  Duck-  35.  Pennoyer    v.    Allen,    56    Wis. 

town    Sulphur,    Copper    &    I.    Co.,   v.  502,  14  N.  W.  609,  43  Am.  Rep.  728. 

Barnes   (Tenn.,  1900),  60  S.  W.  593.  36.  Barkan  v.  Knecht,  9  Ohio  Dec. 

See  §  99,  ante,  herein.  66,  10  Wkly.  Law  Bull.  342.     As  to 

34.  Ducktown   Sulphur,  Copper  &  fertilizer  factories  see  §  118,  herein. 

207 


§§  162,  163  Noisome  Smells. 

§  162.  Injury  must  be  real. — The  fact  that  odors  are  unpleasant 
and  disagreeable  is  not  sufficient  ground  for  invoking  the  aid  of  a 
court  of  equity  to  intefere  with  a  business  or  other  use  of  property 
causing  the  same.  A  real  and  not  a  fanciful  injury  must  be 
shown.  A  substantial  annoyance  must  be  caused  thereby  or  physi- 
cal discomfort  to  a  person  or  an  injury  to  health  or  property.37 
Where  a  discomfort  is  claimed  it  must  not  be  one  which  depends 
merely  upon  a  fanciful  taste  or  the  imagination.38  So  where  it 
was  claimed  that  a  nuisance  was  caused  by  a  smell  emitted  from  a 
slaughter  house  it  was  held  proper  to  refuse  to  charge  the  jury 
that  the  defendant  was  liable  if  any  impurity  of  the  air  was 
caused  by  the  slaughter  house.39 

§  163.  Effect  upon  persons  of  ordinary  health  and  sensitive- 
ness the  test. — 'Where  a  question  arises  whether  a  nuisance  from 
odors  exists  it  is  to  be  determined  by  the  effect  produced  upon 
persons  of  ordinary  health  and  sensitiveness,  and  not  by  that  upon 
persons  who  are  afflicted  with  disease  or  abnormal  physical  con- 
ditions.40 So  it  was  held  improper  to  refuse  to  charge  the  jury  in 
an  action  for  a  nuisance  in  the  escape  of  gases  from  lead  works  that 
"  the  effect  of  a  peculiar  and  very  exceptional  idiosyncracy  or 
susceptibility  on  the  part  of  a  person  by  which  he  or  she  may  be 
affected  by  a  slight  trace  of  arsenic  or  lead  which  would  not  in  any 
degree  affect  other  persons,  would  not  be  such  an  injury  as  would 
of  itself  condemn  the  source  of  such  effect  as  a  nuisance."41  So, 
a  person  may,  it  has  been  decided,  in  the  lawful  use  of  his  prem- 
ises in  a  village  keep  hens  and  the  odors  therefrom  will  not  con- 
stitute a  nuisance,  it  appearing  that  the  hen  houses  and  yard  were 

37.  Wood  v.  Miller   (Mass.,  1905),  38.  Cleveland     v.     Citizens'      Gas 

73  N.   E.   849;      Downing  v.   Elliott,  Light  Co.,  20  N.  J.  Eq.  201. 

182  Mass.  28,  64  N.  E.  201 ;  Beckley  39.  Fay    v.    Whitman,    100    Mass. 

v.  Skroh,   19  Mo.  App.   75;   Duffy  v.  76.       As  to  slaughter  houses   see   §§ 

Meadows  Co.,  131  N.  C.  31,  42  S.  E.  126-129,  herein. 

460;   Price   v.    Grantz,    118    Pa.    402,  40.  Burlington     v.      Stockwell,     5 

11  Atl.  794,  4  Am.  St.  R.  601;  Tiede  Kan.  App.  569,  47  Pac.  988;      Wade 

v.  Schneidt,  105  Wis.  470,  81  N.  W.  v.    Miller    (Mass.,    1905),    73    N.    E. 

826;  Pennoyer  v.  Allen,  56  Wis.  510,  849.     See,  also,  §§  93,  141,  183,  herein. 

14  N.  W.  609,  43  Am.  Rep.  728.  See,  41.  Price  v.  Grantz,   118  Pa.  402, 

also,  §§  88,  137,  182,  herein.  11  Atl.  794,  4  Am.  St,  R.  601. 

208 


Noisome  Smells.  § 

kept  in  a  cleanly  condition  and  in  such  a  manner  as  not  to  injur- 
iously affect  the  health  of  any  normal  person  m  the  neighborhood^ 
It  was  said  by  the  court  in  this  case:   «  The  defendant  had  a  right 
to  the  lawful  use  and  enjoyment  of  her  premises    and  this  would 
include  the  keeping  of  hens  in  houses,  and  a  yard  used  for  that 
purpose,  which  are  shown  by  the  report  to  have  been  maintained  in 
a  cleanly  condition,  and  cared  for  in  such  a  manner  as  not  to 
injuriously  affect  the  health  of  any  normal  person  living  m  tne 
neighborhood.     Although  the  odor  arising  from  the  hen  houses  and 
yard    which  at  times  was  accompanied  by  the  characteristic  cry 
made  by  their  occupants,  may  have  been  unpleasant  it  does  not  ap- 
pear by  the  report  to  have  been  physically  uncomf ortab le  or  un- 
bearable.    Indeed  the  findings  of  fact  fail  to  show  that  the  condi- 
tions existing  on  the  premises  of  the  defendant  were  abnormal    or 
differed  substantially  from  those  usually  found  in  the  country 
where  the  ordinary  incidents  arising  from  keeping  barnyard  fowls 
are  not  considered  extraordinary  or  peculiarily  irritating   even  to 
sensitive  persons."13  And  where  a  person  seeks  to  enjoin  the  estab- 
lishment of  a  business  on  the  ground  that  it  will  be  a  nmsance  be- 
cause of  the  noxious  smells  that  will  be  caused  thereby,  the  fact 
that  the  neighborhood  about  to  be  affected  is  already  devoted  to 
noxious  or  disagreeable  trades  is  held  not  to  be  sufficient  to  affect 
the  right  to  an  injunction  unless  the  one  complained  of  will  not 
add   sensibly  to  the  discomfort.      Nor   is  the   right  affected   by 
the  fact  that  some  persons  may  sustain  the  annoyance  without  dis- 
comfort.44 . 

s  164    That  others  contribute  to  injury  no  defense.— A  person 

is  not  relieved  from  liability  for  injury  from  noxious  smells  or 
o-ases  proceeding  from  a  cause  for  which  he  is  responsible,  by  the 
fact  that  the  complainant  has  sustained  injuries  from  other 
causes.45     But,  where  a  person  is  liable  for  the  damages  occa- 

42.  Wade  v.  Miller    (Mass.  1905),      McKone,  55  Conn.  31,  10  Atl.  164,  3 

73  N    E    849  ■^m"  ^"  ^"  ^' 

43    Per  Braley,  J.  45'  Frost    v"    Berkeley    Phosphate 

44*.  Cleveland  v.   Citizens'   Gas  L.  Co.,  42   S.  C.  402,  20  S.  E.  280,  46 

Co.,  20  N.  J.  Eq.  201,  206,  per  The  Am.  St.  R.  736,  26  L.  R.  A.  693. 

Chancellor.        See,  also,  Hurlbutt  v. 


209 


§§  165,  166  Noisome  Smells. 

sioned  by  his  own  act,  he  is  not  liable  for  those  caused  by  others 
and  he  may  show  that  injury  resulted  from  other  causes  than  that 
complained  of  for  the  purpose  of  mitigating  the  damages.46 

§  165.  Effect  of  locality. — The  general  rule  that  people  who 
live  in  a  city  must  submit  to  the  annoyances  incidental  to  city  life, 
applies  where  smells  or  odors  are  complained  of  as  nuisances.47 
In  this  class  of  cases  also,  what  may  by  reason  of  density  of  popu- 
lation, residential  character  of  the  neighborhood,  or  the  nature  of 
the  specific  act,  amount  to  a  nuisance  in  one  locality,  may  in  an- 
other place  and  under  different  surroundings,  be  proper  and  un- 
objectionable.48 

§   166.  May  be  nuisance   though  not  injurious  to  health. — 

It  is  not  necessary  to  entitle  a  complainant  to  the  interference 
of  a  court  for  his  protection  that  odors  or  gases  should  actually 
produce  disease  or  be  unwholesome.  If  they  are  offensive  and 
disagreeable  in  such  a  manner  as  to  render  life  uncomfortable, 
it  is  sufficient.49  Nor  is  it  necessary  that  an  owner  should  be 
driven  from  his  dwelling  as  a  result  thereof.50  So  a  municipal  cor- 
poration may  be  liable  for  a  nuisance  caused  by  noisome  smells 
from  an  accumulation  of  garbage  though  such  smells  are  not  hurt- 
ful or  unwholesome.51  And  a  factory  for  manufacture  of  fish  into 
a  fertilizer,  which  produces  noxious  smells  to  the  annoyance  of 
persons  traveling  along  the  public  road,  has  been  held  to  be  a 
common  nuisance  and  indictable,  though  the  smells  are  not  injur- 

46.  Loughran  v.  City  of  Des  son  v.  Isham,  9  N.  J.  Eq.  186;  Bohan 
Moines,  72  Iowa,  382,  34  N.  W.  172.  v.  Port  Jervis  Gas  Light  Co.,  122  N. 

47.  Neuhs  v.  Grasselli  Chemical  Y.  18,  33  N.  Y.  St.  R.  246,  25  N.  E. 
Co.,  5  Ohio  N.  P.  359,  8  Ohio  Dec.  246,  9  L.  R.  A.  711,  affg.  45  Hun 
203.  As  to  effect  of  locality  see,  also,  257,  10  N.  Y.  St.  R.  374;  Pinckney 
§§  95-98,  140,  184,  herein.  v.  Ewens,  4  L.  T.    (N.  S.)    741.     See, 

48.  Wade  v.  Miller   (Mass.,  1905),  also,  §§  87,  129,  138,  herein. 

73  N.  E.  849.  •  50.  Bohan     v.     Port     Jervis     Gas 

49.  Meigs  v.  Lister,  23  N.  J.  Eq.  Light  Co.,  122  N.  Y.  18,  33  N.  Y.  St. 
199.  See,  also,  Ashbrook  v.  Com-  R.  246,  25  N.  E.  246,  9  L.  R.  A.  711, 
monwealth,  1  Bush  (Ky.),  139,  89  affg.  45  Hun,  257,  10  N.  Y.  St.  R. 
Am.  Dec.  616;   Cleveland  v.   Citizens  374.      • 

Gas  Light  Co.,  20  N.  J.  Eq.  201;  Ross  51.  Fort   Worth    v.    Crawford,    74 

v.  Butler,  19  N.  J.  Eq.  294;   David-      Tex.  404,  12  S.  W.  52. 

210 


Noisome  Smells.  §§    167-169 

ious  to  health,   it  being  sufficient   if   they    are  offensive  to   the 


senses.52 


§  167.  Question  of  reasonable  care  immaterial.— If  one  so 
uses  his  own  premises  as  to  cause  injury  to  his  neighbor  by  the 
emission  of  noxious  smells  or  gases-,  he  is  liable  therefor  even 
though  he  may  have  used  reasonable  care,53  or  though  the  odors  are 
such  as  are  merely  incident  to  a  business  which  is  conducted  in  a 
reasonable  and  proper  manner.54  The  fact  that  most  approved 
methods  or  appliances  are  used  in  conducting  a  business  is  no  de- 
fense where  it  is  carried  on  in  such  a  manner  as  to  interfere  with 
the  reasonable  and  comfortable  enjoyment  by  another  of  his-  prop- 
erty or  occasions  material  injury  thereto.53 

§  168.  Though  smells  a  public  nuisance  individual  may  sue.— 

The  rule  that  the  fact  that  a  nuisance  is  a  public  nuisance  does 
not  deprive  an  individual  of  his  right  of  action  where  he  has  sus- 
tained a  peculiar  injury  applies  where  the  nuisance  complained  of 
consists  of  noxious  smells.56  Thus  in  a  suit  by  an  individual  to 
abate  a  nuisance  arising  from  noxious  odors  and  gases  caused  by 
the  refuse  from  a  creamery  which  was  allowed  to  accumulate  in 
tanks,  troughs  and  ditches  and  to  stand  so  as  to  become  putrid  and 
sour  and  which  were  offensive  to  the  senses  and  dangerous  to  the 
health  of  the  plaintiff  and  his  family,  it  was  decided  that  the 
plaintiff  might  maintain  his  suit  though  the  nuisance  affected  all 
the  people  in  the  neighborhood.57 

«  169.  Liability  of  municipal  corporation.— A   municipal  cor- 
poration is  liable  for  a  nuisance  which  it  has  power  to  remove  or 

52    State  v.  Luce,  9  Houst.   (Del.)  W.  1039,  24  L.  R.  A.  333;  Pennoyer  v. 

396;      citing    State    v.    Wetherell,    5  Allen,  56  Wis.  502,  14  N.  W.  609,  43 

Harr     (Del.)     487.      As    to    fertilizer  Am.  Rep.  728. 

factories,   see  §   118,  herein.  55.  Duckstown  Sulphur,  Copper  & 

53.  Frost    v.     Berkeley   Phosphate  I.  Co.  v.  Barnes    (Term.,  1905),  60  S. 

Co.,  42   S.  C.  402,  20   S.   E.   280,  26  W.    593. 

L   R    A    693,  46  Am.  St.  R.  736.    See  56.  Gavigan  v.   Atlantic   Ref.   Co... 

§'92'  herein  186  Pa-  604>  40  AtL  834" 

54    Price     v.     Oakfield     Highland  57.  Fisher   v.    Zumwalt,    128    Cal. 

Creamery   Co.,    87    Wis.    536,    58    N.      493,  61  Pac.  82. 

211 


^  l*jQ  Noisome  Smells. 

where  it  permits  a  nuisance  arising  from  the  prosecution  of  a  pub- 
lic work  to  remain.58  So  where  a  municipality  allows  a  stream 
into  which  one  of  the  city  sewers  empties  to  become  obstructed, 
causing  refuse  to  accumulate  in  the  stream,  emitting  noxious 
smells  and  odors,  it  will  be  liable  for  the  injury  caused  thereby 
since  it  is  the  duty  of  the  city  to  remove  the  obstruction  so  as  to 
allow  the  refuse  to  flow  off  without  injury  to  the  health  of  the 
inhabitants.59 

§  170.  Measure  of  damages. — Where  a  nuisance  is  a  perma- 
nent one,  past,  present  and  future,  damages  are  recoverable  in  one 
action,  but  if  it  is  temporary,  only  such  damages  are  recoverable  as 
have  occurred  to  the  time  of  bringing  the  action.  Thus  it  was  so 
held  in  an  action  by  one  to  recover  for  injury  from  noxious  smells 
caused  by  the  placing  by  defendant  of  substances  on  his  land,  it 
being  held  that  damages  were  only  recoverable  to  the  commence- 
ment of  the  suit  and  that  successive  actions  could  be  maintained  by 
the  plaintiff  until  the  nuisance  was  abated.60  So  in  an  action  for 
injury  to  property  caused  by  noxious  smells  from  the  dumping  of 
garbage  thereon  it  has  been  decided  that  a  recovery  cannot  be 
had  as  for  a  permanent  injury,  it  not  appearing  that  the  odors 
will  be  permanent  or  that  there  has  been  any  permanent  injury  to 
the  soil.61  It  was  said  by  the  court  in  this  case :  "  The  recovery  of 
damages  is  sought  in  this  case  on  the  ground  that  the  stenches  and 
odors  arising  from  the  deposits  of  garbage  and  filth  made  by  the 
city  had  rendered  the  dwelling  of  the  plaintiff  untenantable, 
thereby  destroying  its  rental  value,  and  causing  permanent  depre- 
ciation in  the  value  of  the  property  by  reason  of  the  odors  and  that 
reputation  as  to  unhealthfulness  acquired  therefrom.  It  is  not  al- 
leged that  there  was  any  permanent  injury  to  the  soil  by  reason  of 
the  deposits,  but  the  claim  for  damages  is  made  to  rest  upon  the 
existence  of  the  stench  arising  from  the  garbage.     It  follows  that, 

58.  Fort  Worth  v.  Crawford,  74  111.  636,  73  N.  E.  322.  See  Cleveland 
Tex.  404,  12  S.  W.  52,  15  Am.  St.  R.  C.  C.  &  St.  L.  Ry.  Co.  v.  King,  23  Ind. 
840.       As    to    municipal    liability    in       App.  573,  55  N.  E.  875. 

such  cases  see  Chap.  XIV.,  herein.  61.  City     of      San      Antonio     v. 

59.  Jacksonville  v.  Dean,  145  111.  Maekey's  Estate,  22  Tex.  Civ.  App. 
23,  33  N.  E.  878.  145,  54  S.  W.  33. 

60.  Fairbanks    Co.    v.    Bahre,    213 

212 


Noisome  Smells.  §  170 

unless  the  cause  of  the  odors  is  of  such  a  nature  that  it  cannot  be 
removed,  there  could  be  no  permanent  damage.  There  is  no  evi- 
dence that  tends  to  prove  that  the  odors  are  permanent  in  their 
injury.  .  .  .  There  was  no  testimony  to  the  effect  that  the 
nuisance  could  not  be  abated.  .  .  .  The  testimony  clearly 
established  the  temporary  character  of  the  nuisance,  and,  inde- 
pendent of  the  testimony,  experience  and  reason  would  seem  to 
teach  that,  in  the  very  nature  of  things,  deposits  made  on  or  near 
the  surface  can  be  removed.  .  .  .  Such  being  the  case  pre- 
sented by  the  evidence,  the  depreciation  in  the  market  value  of  the 
land  was  not  the  measure  of  damages  and  the  charge  presenting 
that  issue  to  the  jury  can  have  no  other  tendency  than  of  mis- 
leading them.  As  to  a  nuisance  capable  of  abatement,  the  depre- 
ciation of  the  value  of  the  property  can  have  no  applicability. 
The  settled  rule  of  damages  in  such  cases  is  the  difference  in  the* 
rental  value  with  and  without  the  nuisance."62  In  an  action,  how- 
ever, by  one  for  damages  for  a  nuisance  caused  by  the  discharge 
by  the  defendant  of  refuse  from  his  creamery  onto  plaintiff's 
lands  and  the  noxious  smells  caused  thereby,  it  was  decided  that  the 
recovery  was  not  limited  to  the  damages  to  the  land  or  the  rental 
value  thereof  for  the  plaintiff  might  have  sustained  some  special 
damages  not  capable  of  direct  proof.63  So  in  an  action  for  dam- 
ages for  nuisance  caused  by  unpleasant,  disagreeable  odors  aris- 
ing from  water  collecting  about  ties,  placed  by  a  railroad  com- 
pany in  front  of  plaintiff's  residence,  which  caused  decay  and 
decomposition,  it  was  decided  that  as  items  of  damages  the  plain- 
tiffs were  entitled  to  recover  for  loss  of  time  and  for  all  the  dis- 
comforts in  the  home  arising  therefrom,  such  as  vile  odors, 
whether  it  caused  mental  or  bodily  pain  or  both ;  but  that  they 
could  not  recover  for  the  unsightly  appearance  presented  by  the 
ties  to  the  eye  nor  the  marring  of  the  charming  vista  in  front  of 
their  home.64    And  where  one  sought  to  recover  damages  for  injury 

62.  Per    Fly,    J.,    citing   Jutte    v.  242,  47  N.  E.  360;  Gas  Co.  v.  Thomas, 

Hughes,  67  N.   Y.  267;   Ruff  v.  Rin-  41  Neb.  662,  59  N.  W.  925. 

aldo.     55     N.     Y.     664;     Francis     v.  63.  Van     Fossen     v.     Clark,     113 

Schoelkopf,  53  N.  Y.   152;   Comrainge  Iowa,  86,  84  N.  W.  989,  52  L.  R.  A. 

v.  Stevenson,  76  Tex.   642,   13   S.  W.  279. 

556;  Fairbank  Co.  v.  Nicolai,  167  111.  64.  Houston,  E.  &  W.  T.  Ry.  Co. 

213 


§§  171,  172  Noisome  Smells. 

caused  by  noxious  smells  and  gases  from  a  smelting  works,  it  was 
decided  that  liis  entire  damages  were  recoverable  without  regard 
to  the  fact  that  the  establishment  of  such  works  afforded  a  mar- 
ket for  the  timber  and  garden  products  from  his  land.65  But 
where  sewage  disposal  works  maintained  by  the  defendant  con- 
stituted a  nuisance  to  the  plaintiff  and  his  premises,  the  measure 
of  damages  was  held  to  be  the  difference  between  the  rental  value 
of  the  property  prior  to  the  erection  and  maintenance  of  the  dis- 
posal works  and  its  value  after  such  works  were  erected,  there 
being  no  evidence  of,  and  plaintiff  not  seeking  any  damages  from 
physical  discomfort,  annoyance,  inconvenience  or  sickness  arising 
from  the  odors  complained  of.66  If  the  nuisance  complained  of  is 
a  public  nuisance,  a  plaintiff  can  only  recover  damages  for  such 
injuries  as  are  not  common  to  the  public.67 

§  171.  Act  authorizing  board  of  health  to  abate  public  nuis- 
ances construed. — Under  an  act  authorizing  boards  of  health  to 
abate  nuisances  hazardous  to  public  health,  a  nuisance  which  may 
be  abated  by  such  a  board  under  this  act  must  be  one  which  is  in 
fact  hazardous  to  public  health.  If  it  merely  causes  annoyance, 
renders  a  home  uncomfortable  or  depreciates  the  value  of  property, 
relief  must  be  sought  by  the  individual.  A  nuisance  is  within  the 
meaning  of  such  an  act  where  it  consists  of  smells  which  are  so 
offensive  that  citizens  are  obliged  to  retire  within  their  houses 
and  close  their  doors  and  windows  and  are  of  such  a  character  that 
they  produce  nausea  and  vomiting  and  frequently  compel  people  to 
go  without  their  meals.68 

§  172.  Injunction  order — How  construed.— An  injunction  or- 
der should  be  clear  and  definite  in  its  terms  so  that  the  parry  en- 

v.  Reasonover  (Tex.  Civ.  App.,  1904),  Tex.  404,  12  S.  W.  52,  15  Am.  St.  R. 

81   S.  W.   329.  840.     As  to  necessity  of  special  injury 

65.  Ducktown  Sulphur,  Copper  &  to  enable  individual  to  sue  for  nui- 
I.  Co.  v.  Barnes  (Tenn.,  1900),  60  sance  affecting  the  highway  see  §§ 
S.  W.  593.  218-222,   herein. 

66.  Gerow  v.  Village  of  Liberty  68.  State,  Board  of  Health  v. 
(N.  Y.  App.  Div.,  1905),  94  N.  Y.  Neidt,  (N.  J.)  ,19  Atl.  318 
Supp.   949.  (construing  N.  J.   Pub.   L.    1887,   p. 

67.  Fort  Worth  v.  Crawford,  74      80). 

214 


Noisome  Smells.  §17^5 

joined  may  readily  know  what  he  can  or  cannot  do  thereunder  and 
should  be  so  construed  as  not  to  do  violence  to  the  language  and 
intent  of  the  order.  Thus  it  was  so  declared  where  an  injunction 
had  been  granted  against  the  mixing  of  acids  or  chemicals'  in  the 
making  of  phosphate  manures  so  as  to  produce  noxious  smells 
creating  a  nuisance,  it  being  held  that  the  order  only  referred  to 
the  manufacture  of  such  manures  and  did  not  apply  to  the  mak- 
ing of  fish  oil  in  the  same  factory,  it  appearing  from  the  finding  on 
which  the  injunction  was  based  that  this  business  was  not  a  nuis- 


§  173.  Where  evidence  conflicting — In  case  of  appeal. — The 
appellate  court  in  reviewing  the  determination  of  a  trial  court  on 
a  question  of  fact  as  to  whether  the  use  of  premises,  causing  smells, 
is  a  nuisance  when  the  evidence  is  conflicting,  will  not  reverse  the 
determination  of  the  former  merely  upon  the  ground  that  in  its 
opinion  a  different  conclusion  should  have  been  reached.70 

69.  Baldwin   v.    Miles,     58     Coun.       App.    Div.    (N.    Y.)     136,    67    N.    Y. 
496,  20  Atl.  618.  Supp.  541,  affd.  171  N.  Y.  662,  64  N. 

70.  Mackay-Smith  v.  Crawford,  56      E.  1123. 


215 


CHAPTER  X. 

Noises,   Jars  and  Vibrations. 

g/*»U0N  174.  Noise  as  a  nuisance. — Generally. 

175.  Noises   at  unreasonable   hours. 

176.  Particular  noises  as   a  nuisance. 

177.  Noise  disturbing  religious  services. — Action   by  individuals. 

178.  Same  subject. — In  action  by  religious  corporation  or  society. 

179.  Ringing  of  bells. 

180.  Steam  whistles. 

181.  Anticipated    nuisance. — Erection    of    building. 

182.  Noise  must  produce  substantial  injury. 

183.  The  test  is  the  effect  upon  ordinary  persons. 

184.  Effect  of  locality. 

185.  Where   business    legalized. 

186.  Same   subject. — Location  not  designated. 

187.  Where  nuisance  can  be  avoided. 

188.  Jars   and   vibrations. 

189.  Distinction  between  nuisance   affecting  air  and  those  affecting 

land  or  structures. 

190.  Jar  and  vibration. — Defendant  may  show  injury  due  to  other 

causes. 

191.  Damages  recoverable. 

§  174.  Noise  as  a  nuisance — Generally. — Noise  which  con- 
stitutes an  annoyance  to  a  person  of  ordinary  sensibility  to  sound, 
so  as  to  materially  interfere  with,  the  ordinary  comfort  of  life 
and  to  impair  the  reasonable  enjoyment  of  his  habitation  to  him, 
is  a  nuisance.1     "  If  unusual  and  disturbing  noises  are  made,  and 

1.  Roth  v.  Couly    (Ky.,   1900),  55  Y.    Supp.    225;   Shaw  v.    Queen   City 

S.  W.  881;  Froelicher  v.  Oswald  Iron-  Forging   Co.,   7    Ohio   N.    P.   254,    10 

works,   111   La.   705,   35   So.    821,   64  Ohio  S.  &  C.  P.  Dec.  107;   Schlueter 

L.  R.  A.  228;  State  v.  King,  105  La.  v.     Billingheimer     (Ohio),     14  Wkly. 

731,   30    So.    101;    Dittman   v.   Repp,  Law  Bull.  224;      Sparhawk  v.  Union 

50  Md.  516,  33  Am.  Rep.  525;  Davis  Pass.    Ry.    Co.,    54    Pa.    401;   Stock- 

v.  Sawyer,  133  Mass.  89,  43  Am.  Rep.  dale  v.  Rio  Grande  Western  Ry.   Co. 

519;     Davidson    v.    Isham,    9    N.    J.  (Utah,    1904),    77    Pac.    849;   Powell 

Eq.    186;   Pritchard   v.    Edison    Elec-  v.  Bentley  &  G.  Furn.  Co.,  34  W.  Va. 

trie  Ilium.  Co.,  179  N.  Y.  364,  72  N.  804,   12  S.  E.   1085,   12  L.  R.  A.  53; 

E.  243,  aff'g  92  App.  Div.  178,  87  N.  Snyder  v.    Cabell,   29   W.   Va.   48,    1 

216 


Noises,  Jars  and  Vibrations.  §  175 

particularly  if  they  are  regularly  and  persistently  made,  and  if 
they  are  of  a  character  to  affect  the  comfort  of  a  man's  household, 
or  the  peace  and  health  of  his  family,  and  to  destroy  the  comfort- 
able enjoyment  of  his  home,  a  court  of  equity  will  stretch  out  its 
strong  arm  to  prevent  the  continuance  of  such  injurious  acts."  2 
And  to  render  noise  a  nuisance  it  need  not  be  such  as  to  injure 
health.3  A  preliminary  injunction  may,  however,  be  refused 
where  it  appears  that  it  will  work  irreparable  injury.  So  it  was 
refused  in  an  action  by  one  to  restrain  the  removal  of  theatrical 
scenery  from  a  theatre  on  Sunday  mornings  at  the  expiration  of 
the  weekly  engagements  of  the  companies  playing  there,  it  being 
claimed  that  a  nuisance  was  thereby  created  on  account  of  the 
noise  which  deprived  residents  of  their  sleep.4 

§  175.  Noises  at  unreasonable  hours. — The  carrying  on  of  a 
business  at  unreasonable  hours  which  produces  noise  to  the  annoy- 
ance and  substantial  discomfort  of  residents  in  the  neighborhood, 
will  constitute  a  nuisance  which  a  court  of  equity  will  restrain.5 
So  where  a  factory  located  in  a  residence  district  is  operated 
both  day  and  night  and  produces  such  noises  as  to  deprive  persons 
in  the  neighborhood  of  their  needed  rest  and  sleep,  the  operation 
of  the  factory  during  the  unreasonable  hours  will  be  restrained.6 
So  where  a  person  who  was  a  sheet  and  iron  worker  commenced  to 
carry  on  his  work  generally  before  daylight,  discontinued  it  dur- 
ing the  day  while  he  worked  elsewhere  and  resumed  it  in  the 
evening  and  continued  it  until  eleven  o'clock  at  night  and  the  noise 
of  the  hammering  was  very  great  so  that  the  complainant  and  his 
family  could  scarcely  hear  each  other  converse,  were  obliged  to 

S.    E.    241;  Heather   v.    Pardou,    37  4.  Penrose  v.   Nixon,    140  Pa.   45, 

L.  T.  N.   S.  393:  Broder  v.  Saillard  21   Atl.   364. 

L.   R.   2    Ch.    Div.    692.     See   Metro-  5.  Dennis    v.    Eckhardt,    3    Grant 

politan  West  Side  Elev.   R.  Co.,   100  Cas.    (Pa.)    390;  McCann   v.   Strang, 

111.  App.  323.  97  Wis.  551,  72  N.  W.  1117;  Rushmer 

2.  Appeal     of    Ladies'     Decorative  v.    Rolsue   &    Alfieri     (1906),    1    Ch. 
Art  Club    (Pa.,    1888),   13  Atl.   537,  234. 

per  the  court.  6.  Shaw    v.    Queen    City    Forging 

3.  Froelicher      v.      Oswold      Iron-       Co.,  7  Ohio  N.  P.  254,  10  Ohio  S.  & 
works,  111  La.  705,  35  So.  821,  64  L.       C.  P.  Dec.  107. 

R.  A.  228.     See,  also,  §§  87,  129,  138, 
166,  herein. 

217 


§  176  Noises,  Jars  and  Vibrations. 

abandon  their  chambers  next  to  the  shop,  and  every  night  and 
morning  were  deprived  of  their  rest  by  the  persistent  hammering, 
it  was  decided  that  a  preliminary  injunction  should  be  granted.7 
In  this  case  the  court  said :  "  I  cannot  doubt  that  a  constant  an- 
noyance, which  at  law  cannot  be  abated,  is  never  remedied  by 
damages.  The  loss  of  health  and  sleep,  the  enjoyment  of  quiet  and 
repose,  and  the  comforts  of  home  cannot  be  restored  or  compen- 
sated in  money ;  it  may  afford  consolation,  but  it'  does  not  remedy 
the  evil  if  that  goes  on,  to  be  paid  for  by  installments.  The  law 
operates  on  the  past  only,  while  equity  can  and  will  act  on  the 
present  and  future,  will  abate  the  nuisance  itself,  and  restore  the 
injured  party  to  his  rights.  In  this  case  a  suit  or  suits  would  not 
be  an  adequate  remedy  for  the  evils  complained  of,  in  my  opinion. 
But  we  should  not  interfere  by  preliminary  injunction,  except  in 
cases  of  irreparable  mischief  or  injury.  Have  we  not  such  a  case 
here  ?  It  may  be  as'ked  if  the  mischief  is  not  irreparable  which  en- 
tails the  want  of  health  as  a  consequence  of  annoyances.  A  chan- 
cellor does  not  wait  until  noisome  trades  and  unwholesome  gases 
kill  somebody  before  he  proceeds  to  restrain.  .  .  His  remedy  is 
preventive,  and  if  the  tendency  of  the  acts  complained  of  be  in- 
jurious, so  that  the  injury  be  irreparable,  he  will  proceed  to  pre- 
vent them.  ...  I  am  therefore  of  the  opinion  that  the  defend- 
ant should  be  restrained  from  using  his  tin  and  sheet  iron  work- 
shop, as  a  workshop,  until  further  order  of  the  court."  Again 
the  making  of  great  noises  in  the  night  with  a  speaking  trumpet  to 
the  disturbance  of  the  neighborhood  has  been  held  to  be  a  nuisance 
and  the  defendant  fined.9 

§  IT 6.  Particular  noises  as  a  nuisance. — Where  a  school  of 
decorative  art  was  established  in  a  neighborhood  used  for  dwel- 
lings and  the  noises  from  instruction  in  metal  chasing  produced 
loud  noises  which  interfered  with  conversation  and  substantially 
affected  the  residents  in  the  comforts  and  enjoyment  of  their 
homes,  it  was  held  to  constitute  a  nuisance.10  So  noises  from  the 
business  of  a  gold  and  silver  beater  have  been  held  to  be  a  nuis- 

7.  Dennis    v.    Eckhardt,    3    Grant  9.  Rex  v.  Smith,  1  Strange,  704. 
Cas.   (Pa.)   390.  10.  Ladies'   Decorative  Art  Club's 

8.  Per  Thomspon,  J.  Appeal    (Pa.,  1888),  13  Atl.  537. 

218 


Noises,  Jars  and  Vibrations.  §  170 

ance,u  from  a  skating  rink,12  a  roller  coaster,13  and  an  adjoining- 
owner  has  been  held  entitled  to  an  injunction  restraining  the  de- 
fendant from  keeping  horses  in  his  stable  so  as  to  cause  noise  so 
great  as  to  prevent  the  ordinary  and  comfortable  use  and  enjoy- 
ment by  a  tenant  of  plaintiff's  house.14  So  where  a  circus  caused 
noises  near  plaintiff's  dwelling  to  such  an  extent  as  to  materially 
interfere  with  the  ordinary  comfort  by  the  plaintiff  of  his  home, 
the  continuance  of  the  same  was  enjoined.15  So  in  an  action  to  re- 
strain an  electric  light  company  from  so  operating  its  plant  as  to 
cause  a  nuisance  by  the  noise  and  vibration  to  the  lessee  of  adjoin- 
ing premises,  used  as  a  dwelling,  it  was  decided  that  there  "  must 
be  an  injunction  during  the  continuance  of  plaintiff's  lease  to  re- 
strain the  defendant  company,  its  servants,  directors,  and  agents, 
from  using  or  working  or  causing  or  permitting  to  be  used  or 
worked,  in  or  upon  their  generating  station  and  other  works  ad- 
jacent to  the  plaintiff's  garden,  any  engines,  dynamos,  or  other 
machinery,  or  for  the  carrying  on  the  manufacture  of  gas  or  any 
other  process,  in  such  manner  as,  by  the  production  of  noise, 
noxious  or  offensive  smells,  vibration  or  otherwise  to  be  or  occa- 
sion nuisance  or  injury  to  the  plaintiff  as  lessee  or  occupier  of  the 
house,  garden,  and  premises  comprised  in  her  lease.16  So  the 
noise  from  a  steam  engine  may,  under  some  circumstances,  be  a 
nuisance  and  the  use  of  the  engine  on  that  account  restrained.17 
And  one  may  be  enjoined  from  producing  noises  or  sounds  where 
he  acts  maliciously  for  the  purpose  of  annoying  his  neighbor.18 
But  noises  or  sounds  caused  by  music  lessons  several  hours  a  week 
in  an  adjoining  house  separated  from  the  plaintiff's  by  a  party 
wall,  and  also  the  sounds  caused  by  some  one  practicing  on  a 
piano  and  violin;  from  musical  parties,  and  from  musical  per- 
il. Wallace  v.  Auer,  10  Phila.  16.  Knight  v.  Isle  of  Wight  Elec. 
(Pa.)   356.                                                         L.    &   P.    Co.,    73   L.   J.    Ch.   299,   90 

12.  Snyder   v.   Cabell,    29    W.   Va.       Law  T.  (N.  S.)  410,  68  J.  P.  266,  per 
48,  1  S.  E.  241.  Joyce,  J.     As  to  electric  light  plants, 

13.  Schleuter       v.       Billingheimer       see  §  114,  herein. 

(Ohio  C.  P.),  14  Wkly.  Law  B.  224.  17.  Davidson  v.  Isham,  9  N.  J.  Eq. 

14.  Broder    v.    Saillard,    L.    R.    2       186. 

Ch.  Div.  692.     As  to  stables,  see   §§  18.  Christie    v.    Davey    (1893),    1 

200-204,  herein.  Ch.  316. 

15.  Inchbold  v.  Robinson,  20  L.  T. 
N.  S.  259. 

219 


§  177  Noises,  Jars  and  Vibrations. 

formances  for  the  entertainment  of  persons  living  in  the  house 
were  held  not  to  constitute  a  nuisance.19  And  where  defendant 
was  constructing  new  buildings  into  which  it  intended  to  remove 
its  electric  light  plant,  it  was  decided,  in  an  action  by  an  adjoin- 
ing owner  to  enjoin  the  business  on  account  of  noise  and  jar  from 
the  machinery,  that,  while  an  injunction  should  be  granted,  yet,  in 
view  of  the  contemplated  change  of  location,  the  defendant  should 
be  given  time  to  remove  the  plant  before  the  judgment  should 
take  effect.20  And  where  residents  in  the  neighborhood  of  a  fac- 
tory sought  by  injunction  to  abate  noises  therefrom  and  it  was 
admitted  by  the  plaintiff  that  the  defendant  had  up  to  a  certain 
time  conducted  its  business  within  a  proper  exercise  of  its  rights 
and  that  the  injury  complained  of  was  owing  to  the  fact  that  they 
had  subsequently  acted  in  excess  thereof,  it  was  held  that  an 
injunction  should  only  be  granted  to  the  extent  of  the  nuisance 
alleged.21 

§  177.  Noise  disturbing  religious  services — Action  by  indi- 
vidual.— Though  an  individual  may  be  annoyed  or  interrupted  in 
his  religious  devotion  or  exercises  by  noise  yet  it  has  been  decided 
that  he  will  not,  on  this  ground  alone,  be  entitled  to  an  injunction 
to  restrain  such  noise  or  the  cause  thereof  as  a  nuisance.  So  in  an 
action  by  a  member  of  a  religious  organization  to  abate  noises 
which  disturbed  him  in  his  religious  exercises,  it  was  decided  that 
the  injury  complained  of  being  in  the  nature  of  a  nuisance  or 
injury  to  the  officers  of  the  church,  it  was  for  them  to  seek  redress 
therefor  and  not  for  the  plaintiff.22  It  was  said  by  the  court  in 
this  case :  "In  the  first  place,  the  injury  alleged  is  not  the  ground 
of  an  action.  He  (the  plaintiff)  claims  no  right  in  the  building, 
or  any  pew  in  it,  which  has  been  invaded.  There  is  no  damage 
to  his  property,  health,  reputation  or  person.  He  is  disturbed 
in  listening  to  a  sermon  by  noises.  Could  an  action  be  brought 
by  every  person  whose  mind  or  feelings  were  disturbed  in  listen- 

19.  Christie  v.  Davey  (1893),  1  Co.,  7  Ohio  N.  P.  254,  10  Ohio  S.  & 
Ch.  316.  C.  P.  Dec.  117. 

20.  Braender  v.  Harlem  Lighting  22.  Owen  v.  Henman,  1  Watts  & 
Co.,  2  N.  Y.  Supp.  245.  S.    (Pa.)   548,  37  Am.  Dec.  481. 

21.  Shaw   v.    Queen   City    Forging 

220 


Noises,  Jars  and  Vibrations. 


17 


ing  to  a  discourse,  or  any  other  mental  exercise  (and  it  must  be  the 
same  whether  in  church  or  elsewhere)  by  the  noises  voluntary  or 
involuntary,  of  others,  the  field  of  litigation  would  be  extended 
beyond  endurance.  The  injury,  however,  is  not  of  a  temporal 
nature ;  it  is  altogether  of  a  spiritual  character  for  which  no  action 
lies."  s  And  it  has  been  decided  that  an  injunction  will  not  be 
granted  in  such  a  case  though  the  act  be  illegal.  Thus  it  was  so  held 
in  Sparhawk  v.  Union  Passenger  Railway  Co.,24  in  which  the  court 
said :  "  The  proofs  exhibited  by  the  plaintiffs  are  like  the  bill,  and 
show  only  the  public  offense,  we  think.  It  is  in  substance  that  on 
the  Sabbath  day,  devotional  exercises  such  as  reading  the  scrip- 
tures, engaging  in  public  or  private  worship,  and  giving  religious 
instruction  to  children,  are  disturbed,  especially  in  front  parts  of 


23.  Per  Sergeant,  J. 

So  it  was  said  in  another  case  in 
this  State:  "Religious  meditation, 
and  devotional  services,  are  a  duty 
and  a  privilege  undoubtedly,  but  re- 
sult nevertheless  from  sentiments  not 
universal  in  their  demonstration  by 
any  means,  but  peculiar  to  individ- 
uals rather  than  to  the  whole  com- 
munity. ...  It  cannot  be  af- 
firmed in  regard  to  the  devotional  ex- 
ercises embraced  within  the  privilege, 
that  it  is  more  than  a  mental  dis- 
turbance— an  inconvenience. 
It  seems  to  me  that  the  rule  ex- 
pressed in  the  cases  referred  to  is 
the  only  true  one  in  judging  of  in- 
jury from  alleged  nuisances,  viz., 
such  as  naturally  and  necessarily  re- 
sult to  all  alike  who  come  within 
their  influence.  Not  to  one  on  ac- 
count of  peculiar  sentiments,  feelings 
or  tastes,  if  it  would  have  no  effect 
on  another,  or  all  others  without 
these  peculiar  sentiments  or  tastes. 
Not  to  a  sectarian  if  it  would  not  be 
to  one  belonging  to  no  church.  It 
must  be  something  about  the  effects 
of  which  all  agree.     .     .     .     The  bill 


charges  an  injury  not  physical,  but 
mental  or  spiritual.  One  which 
neither  deprives  the  body  of  rest,  re- 
freshment or  health.  That  this  is 
the  nature  of  the  complaint  is  most 
evident,  from  the  fact  that  the  dis- 
turbing causes  are  the  same,  and  no 
greater,  on  Sundays  than  on  other 
days,  and  of  this  there  is  no  com- 
plaint. How  are  we  to  determine 
whether  the  mind  is  injuriously  dis- 
turbed or  not?  To  some  it  is  granted 
that  there  may  be  annoyance  in  the 
passing  of  cars  on  Sundays.  To 
others  it  would  be  but  an  agreeable 
sound.  To  many  it  would  be  an  an- 
noyance because  of  their  views  of  the 
Sabbath.  .  .  .  It  is  not  possible 
in  my  judgment  to  establish  a  ma- 
terial injury,  where  alone  at  most 
the  mind  is  disturbed  without  the 
slightest  bodily  effect  or  interference 
with  ordinary  comfort.  It  is  but  an 
inconvenience  incident  to  the  situa- 
tion, and  not  the  subject  of  an  adjudi- 
cation in  equity."  Per  Thompson,  J., 
in  Sparhawk  v.  Union  Pass.  Ry.  Co., 
54  Pa.  St.  401. 

24.  54  Pa.  St.  401. 


221 


§  178  .Noises,  Jaks  asd  Vibeatioks. 

their  dwellings,  and  that  the  enjoyment  of  their  pews  in  the 
churches  along  the  line  of  the  defendants'  road  is  interfered  with, 
because  of  an  inability,  on  account  of  the  noise  incident  to  the 
cars  at  the  moment  of  passing,  of  distinctly  hearing  what  the 
minister  is  saying  or  reading;  and  also  because  it  is  difficult,  as 
proved  by  one  witness  at  least,  a  respectable  clergyman,  to  make 
himself  heard  by  the  congregation,  and  for  these  reasons 
the  property  of  the  complainants  is  claimed  to  be  injured  and  ren- 
dered less  valuable.  If  this  be  taken  as  the  uncontradicted  testi- 
mony, which  is  far  from  being  the  case,  does  it  do  more  than  estab- 
lish the  offense  of  a  violation  of  the  statute,  and  therefore  is  in- 
jurious because  done  on  the  Sabbath?  .  .  .  Separated  from  the 
offense  against  the  day  there  is  no  complaint  of  injury — associated 
with  it  there  is  an  injury  according  to  the  plaintiff.  Is  it  not  cer- 
tain, therefore,  that  it  is  because  of  a  violation  of  the  Sunday  law, 
that  it  is  an  injury  ?  For  this  there  is  a  remedy  in  the  penal  laws, 
and  not  by  proceedings  in  equity,  if  we  regard  the  facts  as  we 
ought  to.  It  is  not  impossible  to  construct  a  plausible  argument 
on  the  theory  that  any  violation  of  a  penal  law  is,  without  more, 
a  special  injury ;  but  such  an  injury  would  be  too  shadowy  to  be 
the  foundation  for  equitable  interference;  and,  besides,  the  penal 
law  is  the  remedy  in  such  a  case  to  redress  it,  and  equity  does 
not  interfere."  2o  And  though  a  person  may  be  a  pew  holder  in 
the  church  affected,  it  is  decided  that  be  has  no  right  to  proceed  in 
his  own  name  to  enjoin  a  nuisance  against  the  church  to  which  he 
belongs.26 

§  178.  Same  subject — In  action  by  religious  corporation  or 
society. — Though  from  the  cases  considered  in  the  preceding  sec- 
tion it  will  be  seen  that  noise  has  been  held  not  to  be  a  nuisance 
which  may  be  restrained  in  a  suit  in  equity  merely  because  people 
are  thereby  disturbed  in  their  religious  exercises  or  devotions 
either  at  home  or  in  a  church,  yet  it  will  be  observed  that  these 
cases  have  been  actions  or  proceedings  by  an  individual  or  indi- 
viduals and  not  by  religious  society  itself.      It  would  probably 

25.  Per  Thompson,  J.  tees  of  First  Baptist  Church  v.  Utica 

26.  Sparhawk  v.  Union  Pass.  Ry.      &  S.  By.  Co.,  6  Barb.   (N.  Y.)    313. 
Co.,  54  Pa.  St.  401.     See,  also,  Trus- 

222 


Noises,  Jabs  and  Vibrations.  §  178 

be  determined  that  if  the  noises  were  of  such  a  character  as  to 
render  the  church  useless  for  the  purposes  for  which  designed  or 
materially  depreciated  the  value  of  the  property,  then  an  action 
would  lie  in  behalf  of  the  corporation  for  damages  and  that  where 
the  nuisance  is  a  continuous  one  it  might  be  restrained.  In  this 
connection  a  decision  in  the  United  States  Supreme  Court  is  perti- 
nent though  the  nuisance  consisted  of  other  elements  than  n 
It  here  appeared  that  the  defendant,  a  railroad  company,  had  con- 
structed its  engine  house  and  machine  shops  on  land  immediately 
adjoining  the  church  edifice  of  the  plaintiff,  a  religious  society. 
The  nuisance  complained  of  consisted  of  noises  caused  by  the 
hammering  in  the  shop,  the  rumbling  of  engines  passing  in  and 
out  of  the  engine  hou.se,  the  blowing  off  of  steam,  the  ringing  of 
bells,  the  sounding  of  whistles,  and  also  of  smoke  from  the  chim- 
neys* together  with  cinders,  dust,  and  offensive  odors.  The  noise 
was  often  so  great  as  to  prevent  the  voice  of  the  pastor  while 
preaching  from  being  heard.  The  smoke  and  cinders  often  entered 
the  church  in  such  quantities  as  to  cover  the  seats  of  the  church 
with  soot  and  to  soil  the  garments  of  the  worshippers.  The  odors, 
in  addition  to  the  noise  and  smoke,  rendered  the  place  not  only  un- 
comfortable but  almost  unendurable  as  a  place  of  worship.  It  was 
decided  by  the  court  in  this  case  that  the  engine  house  and  repair 
shop  as  used,  were  plainly  a  nuisance  and  that  there  might  be  a 
recovery  by  the  plaintiff  for  the  injuries  done  to  its  property  and 
for  the  personal  discomfort  and  apprehension  of  danger  suffered 
by  its  members.  Mr.  Justice  Field  said  in  this  case:  "  The  right 
of  the  plaintiff  to  recover  for  the  annoyance  and  discomfort  to  its 
members*  in  the  use  of  its  property,  and  the  liability  of  the  defend- 
ant to  respond  in  damages  for  causing  them,  are  nut  affected  by 
their  corporate  character.  Private  corporations  are  but  associa- 
tions of  individuals  united  for  some  common  purpose,  and  per- 
mitted by  the  law  to  use  a  common  name,  and  to  change  its  mem- 
bers  without  a  dissolution  of  the  association.  Whatever  interferes 
with  the  comfortable  use  of  their  property,  for  the  purposes  of 
their  formation,  is  as  much  the  subject  of  complaint  as  though  the 
members  were  united  by  some  other  than  a  corporate  tie.  Here 
the  plaintiff,  the  Fifth  Baptist  Church,  was  incorporated  that  it 
might  hold  and  use  an  edifice  erected  by  it,  as  a  place  of  public 

223 


^  171)  Noises,  Jaks  and  Vibrations. 

worship  for  its  members  and  those  of  similar  faith  meeting  with 
t hi -I ti.  Whatever  prevents  the  comfortable  use  of  the  property  for 
that  purpose  by  the  members  of  the  corporation,  or  those  who,  by 
its  permission,  unite  with  them  in  the  church,  is  a  disturbance  and 
annoyance,  as  much  so  as  if  access  by  them  to  the  church  was  im- 
peded and  rendered  inconvenient  and  difficult.  The  purpose  of 
the  organization  is  thus  thwarted.  It  is  sufficient  to  maintain  the 
action  to  show  that  the  building  of  the  plaintiff  was  thus  rendered 
less  valuable  for  the  purposes  to  which  it  was  devoted.27  So  in  an 
action  by  a  church  society  to  restrain  the  playing  of  a  band  in  a 
skating  rink,  which  was  on  adjoining  premises,  in  such  a  manner 
as  to  disturb  services  in  the  church  on  week  days,  it  was  decided 
that  the  injunction  would  be  granted  as  the  use  of  the  premises 
by  the  complainant  for  religious  exercises  was  a  natural  and  ordi- 
nary one  in  which  it  should  be  protected,  and  that  the  annoyance 
complained  of  materially  interfered  with  such  use.28 

§  179.  Ringing  of  bells. — The  habitual  ringing  of  a  bell  may 
constitute  a  nuisance  which  will  be  enjoined  as  in  the  case  of  a 
heavy  factory  bell  which  is  rung  at  an  early  hour  in  the  morning 
in  order  to  rouse  the  operatives  and  which  disturbs  the  sleep  of 
residents  in  the  neighborhood.  And  evidence  of  a  custom  to  ring 
bells  in  other  places  for  such  a  purpose  is  held  inadmissible.29  And 
it  has  been  decided  that  where  the  ringing  of  church  bells  causes 
a  substantial  annoyance  and,  injury  to  the  occupants  of  adjoining 
premises  it  may  be  enjoined.30  But  the  question  whether  the  ring- 
ing of  bells  constitutes  a  nuisance  is  to  be  determined  by  the  effect 
upon  ordinary  persons.  So  the  ringing  of  church  bells  in  a 
thickly  populated  locality  was  held  not  to  be  a  nuisance  merely 
from  the  fact  that  it  caused  annoyance  to  a  person  who  was  pecu- 

27.  Baltimore  &  Potomac  R.  R.  Stephens,  29  Ont.  Rep.  185.  Com- 
Co.  v.  Fifth  Baptist  Church,  108  U.  pare,  however,  Trustees  of  First  Bap- 
S.  317,  329,  27  L.  Ed.  739.  See,  also,  tist  Church  v.  Utica  &  S.  Ry.  Co., 
Chicago    G.    W.    Ry.    Co.    v.    First  6  Barb.  (N.  Y.)   313. 

Methodist     Episcopal     Church,      102  29.  Davis    v.    Sawyer,    133    Mass. 

Fed.  85,  42  C.  C.  A.  178,  50  L.  R.  A.  289,  43  Am.  Rep.  519. 

488,    so   holding   under   very    similar  30.  Harrison       v.        St.       Mark's 

facts.  Church,   12  Phila.   (Pa.)   259;   Soltau 

28.  Church    of    St.    Margaret    v.  v.  De  Held,  2  Simons  N.  S.  133. 

224 


Noises,  Jars  ant>  Vibrations.  §  180 

liarly  susceptible  to  noise  on  account  of  a  sunstroke  which  he  had 
sustained.31 

§  180.  Steam  whistles. — The  blowing  of  whistles  at  factories 
to  regulate  and  direct  the  order  of  work  may  be  necessary  to  the 
proper  conduct  of  business  and  is  not  a  nuisance  per  se.  The 
noises  and  sounds,  however,  which  these  whistles  are  capable  of 
making  may  become  a  nuisance  where  they  cause  an  injury  to 
health  or  operate  to  destroy  the  comfort  of  one's  home,  and  in  smch 
a  case  the  protecting  arm  of  the  law  may  be  invoked  to  prevent 
them.32  Upon  the  question  of  a  nuisance  caused  by  the  blowing 
of  a  factory  whistle,  it  is  said  in  a  late  case :  "  The  blowing  of 
whistles  at  factories  to  regulate  and  direct  the  order  of  work  may 
be  necessary  to  the  proper  conduct  of  business,  certainly  it  is  not 
a  nuisance  per  se.  Such  sounds  and  noises  as  these  whistles  are 
capable  of  making  can  become  nuisance,  however,  and  the  protect- 
ing arm  of  the  law  can  be  invoked  to  prevent  such.  Injury  to 
health  and  destruction  of  the  comforts1  of  one's  home  can  be  ac- 
complished by  frightful  noises  just  as  well  as  by  means  of  noxious 
and  offensive  odors."  33  In  the  application  of  the  rule  that  a  per- 
son has  no  right  to  do  on  his  premises  that  which  detracts  from  the 
safety  of  travelers  or  renders  the  highway  disagreeable  it  has  been 
determined  a  person  has  no  right  to  maintain  and  operate  a  steam 
whistle  of  such  a  character  as  to  frighten  horses  of  ordinary 
gentleness  when  passing  upon  the  highway  adjoining  his  land.34 
So  where  by  the  blowing  of  a  factory  whistle  plaintiff's  horse  be- 
came frightened  and  plaintiff  was  injured,  the  proprietor  of  the 
factory  was  held  liable.35  And  in  such  a  case  the  one  maintaining 
the  whistle  has  been  held  liable  though  the  person  injured  was 

31.  Rogers  v.  Elliott,  146  Mass.  Rubber  G.  M.  Co.,  38  Conn.  438,  9 
349,  15  N.  E.  768,  4  Am.  St.  R.  316.  Am.  Rep.  406;     Albee  v.  Cbappaqua 

32.  Redd  v.  Edna  Cotton  Mills,  Shoe  Mfg.  Co.,  62  Hun  (N.  Y.),  223, 
136  N.  C.  342,  48  S.  E.  761,  67  L.  42  N.  Y.  St.  R.  566,  16  N.  Y.  Supp. 
R.  A.  983.  687.     As  to  objects  in  highway  which 

33.  Redd  v.  Cotton  Mills,  136  N.  may  frighten  horses,  see  §  255,  herein. 
C.  342,  343,  48  S.  E.  761,  67  L.  R.  35.  Knight  v.  Goodyear's  India 
A.  983,  per  Montgomery,  J.  Rubber  G.  M.  Co.,  38   Conn.  438,  9 

34.  Knight    v.     Goodyear's     India  Am.  Rep.  406. 

225 


§  181  Noises,  Jabs  and  Vibrations. 

guilty  of  negligence.36  Again,  where  the  blowing  of  a  whistle  is 
unnecessary  to  the  successful  prosecution  of  a  business  and  causes 
great  annoyance  to  others  in  the  neighborhood,  it  has  been  decided 
that  it  may  be  enjoined  as  a  nuisance,37  So  in  another  case  it 
was  decided  that  the  court  erred  in  refusing  to  grant  an  injunction 
where  it  was  shown  that  the  whistle  was  unnecessary,  was  blown 
at  unreasonable  hours,  and  seriously  interfered  with  the  reason- 
able enjoyment  by  the  plaintiffs  of  their  habitations  on  account 
of  the  loud,  harsh,  and  terrific  noise.38  But  where  power  is  con- 
ferred by  statute  upon  a  municipality  to  abate  public  nuisances,  it 
is  not  thereby  authorized  to  prohibit  an  act  which  is  not  a  public 
nuisance  and  it  has  been  decided  that  in  such  a  case  it  has  no 
power  to  prohibit  by  ordinance  the  use  of  steam  whistles  within 
the  municipal  limits.39  In  an  action  to  enjoin  the  blowing  of  a 
factory  whistle,  on  the  ground  that  it  is  a  nuisance,  if  the  court 
is  not  satisfied  under  all  the  evidence  that  the  blowing  of  the 
whistle  is  a  nuisance  it  will  not  interfere  until  the  fact  of  "  nuis- 
ance "  has  been  established  by  law.40 

§    181.  Anticipated    nuisance — Erection    of    building. — The 

erection  of  a  building  to  be  used  for  a  certain  business  will  not 
be  restrained  on  the  ground  of  anticipated  noise  therefrom  where 
it  is  not  necessarily  a  nuisance,  but  may  become  one  under  some 
circumstances.  The  anticipated  injury  being  contingent  and  pos- 
sible only  the  court  will  refrain  from  interfering.41 

36.  Albee  v.  Chappaqua  Shoe  Mfg.  41.  Dorsey  v.  Allen,  85  N.  C.  358, 
Co.,  62  Hun  (N.  Y.),  223,  42  N.  Y.  39  Am.  Rep.  704,  in  which  it  was 
St.  R.  566,  16  N.  Y.  Supp.  687.  said  by  the  court:  "It  would  be  an 

37.  Butterfield  v.  Klaber,  52  How.  unwise  exercise  of  power,  upon  such 
Pr.   (N.  Y.)    255.  uncertainty  as  to  the  practical  work- 

38.  Hill  v.  McBurney  Oil  &  Fer-  ing  of  an  undertakened  enterprise, 
tilizer  Co.,  112  Ga.  788,  38  S.  E.  42,  and  its  consequent  effects,  for  the 
52  L.  R.  A.  398.  court  to  interfere  and  prevent  it  be- 

39.  Whitcomb  v.  City  of  Spring-  ing  carried  out."  As  to  injunction  to 
field,  2  Ohio  C.  D.  138.  restrain   erection   of    a   building,    see 

40.  Redd  v.  Edna  Cotton  Mills,  136  §§   103,  205,  herein. 
N.  C.  342,  28  S.  E.  761,  67  L.  R.  A. 

983. 


226 


Noises,  Jars  and  Vibrations.  §  182 

§   182.   Noise  must   produce   substantial  injury Trifling   or 

occasional  noises  dependent  on  ordinary  use  of  property  or  in  pur- 
suance of  an  ordinary  trade  or  calling  will  not  constitute  a  nuis- 
ance.42 The  noise  must  be  such  as  materially  to  interfere  with 
and  impair  the  ordinary  comfort  of  existence  on  the  part  of  ordi- 
nary people.43  The  injury  must  be  a  substantial  one.  "  A  merely 
sentimental  disturbance  is  not  an  element  of  injury  for  which 
recovery  can  be  had.  A  railroad  may  disturb  an  aesthetic  sensibil- 
ity, and  thus  impair  the  enjoyment  which  occupants  of  private 
property  and  the  public  generally,  formerly  had,  and  still  not  im- 
pair any  legal  right  nor  give  ground  for  recovery  of  damages, 
although  such  disturbance  may  have  some  effect  in  depreciating 
the  market  value  of  private  property.  It  must  appear  that  there 
has  been  an  injury,  direct  and  physical,  or  '  really  peculiar  '  to  the 
right  of  user  and  enjoyment."  44  So  where,  in  an  action  to  enjoin 
a  marble  cutting  and  polishing  works  adjoining  plaintiff's  build- 
ing, as  a  nuisance,  it  appeared  that  conversation  in  ordinary  tones 
could  be  carried  on  in  the  room  where  the  machinery  was;  that 
the  noises  were  not  audible  on  the  street  in  which  the  works  were 
situated ;  and  that  they  could  scarcely  be  heard  in  nearby  private 
residences,  it  was  decided  that  the  evidence  did  not  show  a  sub- 
stantial injury  therefrom.45  And  in  another  case  the  court  re- 
fused to  grant  an  injunction  restraining  the  operation  of  a  steam 
laundry  on  the  second  floor  of  a  building  on  the  ground  of  annoy- 
ance by  noise  and  vibration  to  the  occupants  of  the  first  floor  where 
it  did  not  appear  that  the  occupants  of  the  latter  floor  were  in- 
jured in  their  business  or  that  there  was  an  injury  to  their  health 
or  that  of  their  employees.48 

42.  McGuire  v.  Bloomingdale,  33  (Pa.),  42,  holding  that  to  render  a 
Misc.  R.  (N.  Y.)  337,  68  N.  Y.  Supp.  noise  produced  by  the  carrying  on  of 
477.  See,  also,  §§  88,  137,  162,  a  business  a  nuisance  per  se  there 
herein.  must  be  an  absolute  invasion  of  the 

43.  Yocum  v.  Hotel  St.  George  Co.,  rights  of  those  affected  by  the  noise. 
18  Abb.  N.  C.  (N.  Y.)  340;  Shaw  v.  44.  Metropolitan  West  Side  Elev. 
Queen  City  Forging  Co.,  7  Ohio  N.  R.  Co.  v.  Goll,  100  111.  App.  323,  per 
P.  254,  10  Ohio  S.  &  C.  P.  Dec.  107;  Freeman,  J. 

Appeal   of   McCaffrey,    105    Pa.   253;  45.  Butterfield  v.  Klaber,  52  How. 

Powell  v.  Bentley  &  G.  Furn.  Co.,  34  Pr.   (N.  Y.)   255. 

W.  Va.  804,  12  S.  E.  1085,  12  L.  R.  46.  Miller  v.  Schindle,  15  Pa.  Co. 
A.  53.     See  Scott  v.  Houpt,  8  Kulp 

227 


§  183  Noises,  Jars  and  Vibrations. 

§  183.  The  test  is  the  effect  upon  ordinary  persons. — The  test 
as  to  whether  noise  constitutes  a  nuisance  is  not  the  effect  upon  one 
particular  person  without  regard  to  his  mental  or  physical  condi- 
tion, but  rather  the  effect  upon  the  average  person  of  ordinary 
sensibilities.47    The  noise  must  be  such  as'  would  be  likely  to  cause 
some  actual,  material,  physical  discomfort  to  a  person  of  ordinary 
sensibilities.48     So  it  is  declared  by  the  court  in  a  Pennsylvania 
case :  "  If  the  noise  is  only  slight,  and  the  inconvenience  merely 
fanciful,  or  such  as  would  only  be  complained  of  by  people  of  ele- 
gant and  dainty  modes  of  living  and  inflicts  no  serious  or  sub- 
stantial discomfort,   a  court  of  equity  will  not  take  cognizance 
of  it."49    And  in  another  case  it  is  said :  "  People  who  have  extra- 
ordinary   sensibilities    or    nervous   temperaments,    the   sick,    the 
afflicted,  they  whose  refined  tastes,  habits  and  inclinations  lead 
them   to   prefer   complete   silence   and   exclusion,   are   not  to  be 
selected  as  best  qualified  to  attest  or  determine  the  precise  limits  of 
mutual  forbearance,  or  the  absolute  essentials  of  comfortable  en- 
joyment." 50    So  in  a  case  in  the  Federal  Courts  the  court  refused 
to  grant  an  injunction  restraining  the  defendant  from  necessary 
drilling  and  blasting  on  his  lot  for  the  purpose  of  erecting  a  house 
where  the  work  was  being  done  in  a  careful  and  proper  manner 
and  it  appeared  that  the  plaintiff  complained  on  the  ground  that 
by  reason  of  his  enfeebled  condition  from  a  disease  and  an  opera- 
tion, the  noise  and  jar  would  have  an  injurious  effect  on  him.51    It 
was  said  by  the  court  in  this  case :     "  The  court  has  been  able  to 

Ct.   R.   341.     As  to   laundries,   see    §  does  the  nuisance  interrupt  the  aver- 

122,  herein.  age  comfort  to  which  the  individual 

47.  Lord    v.    De    Witt,    116    Fed.  has   the  right."     Per   Breaux,   J.,   in 

713;      McGuire   v.    Bloomingdale,    33  Froelicher  v.  Oswald  Ironworks,   111 

Misc.  R.  (N.  Y.)   337,  68  N.  Y.  Supp.  La.  705,  708,  35  So.  821,  64  L.  R.  A. 

477;      Shaw   v.   Queen   City   Forging  228. 

Co.,  7  Ohio  N.  P.  254,  10  Ohio  S.  &  48.  McCann    v.    Strang,    97    Wis. 

C.  P.  Dec.  107.  551,  72  N.  W.  1117. 

So    in    an    action    for    a    nuisance  49.  Appeal    of    Ladies'    Decorative 

caused  by  noise   it  was   said  by  the  Art  Club   (Pa.,    1888),     13  Atl.  537, 

court :     "  There  is  a  test  in  matter  of  per  the  court. 

nuisance   which   the    following   ques-  50.  Butterfield  v.  Klaber,  52  How. 

tion  suggests:   Is  the  discomfort  one  Prac.    (N.  Y.)    255,  per  Sandford,  J. 

of  mere  fastidiousness  or  extreme  re-  51.  Lord  v.  De  Witt,  116  Fed.  713, 
finement,    as    is    sometimes    seen,    or 

228 


§  184  Noises,,  Jabs  and  Vibrations. 

find  no  authority  for  the  proposition  that  the  owner  of  real  estate 
must  desist  from  the  usual  and  ordinary  method  of  its  improve- 
ment, because  his  neighbor  may  happen  to  be  thus  afflicted,  or  on 
any  theory  that  to  continue  the  excavation  would  be  a  private  nuis- 
ance subject  to  the  control  of  the  courts.  However  shocking  it 
may  sound  to  assert  that  A  is  going  to  take  such  and  such  action, 
the  result  of  which  will  be  to  kill  B,  a  court  of  equity  cannot  in- 
terfere to  prevent  his  doing  so  merely  because  such  conduct  would 
shock  the  conscience.  Plaintiff  has  mistaken  his  forum.  The  only 
real  basis  for  his  contention  is  common  humanity,  and  to  defend- 
ant's humanity,  not  to  legal  tribunals,  his  appeal,  or  rather  the 
appeal  of  those  who  have  brought  this  suit  for  him,  should  be 


in 


ade."6t 


§  184.  Effect  of  locality. — The  general  rules  as  to  effect  of 
locality  in  determining  what  constitutes  a  nuisance  applies  in  the 
case  of  noises.53  What  may  be  a  nuisance  in  one  locality  may 
not  in  another.54  Noises  may  be  a  nuisance  in  a  populous  city 
which  would  not  be  in  the  country.55  "  A  person  who  resides  in 
the  center  of  a  large  city  must  not  expect  to  be  surrounded  by  the 
stillness  which  prevails  in  a  rural  district.  He  must  necessarily 
hear  some  of  the  noise,  and  occasionally  feel  slight  vibrations,  pro- 
duced by  the  movement  and  labor  of  its  people,  and  by  the  hum 
of  its  mechanical  industries.  The  aid  of  a  court  of  equity  may  be 
invoked  to  keep  annoying  sounds  within  reasonable  limits.  Every 
noise,  however,  is  not  a  nuisance,  nor,  when  produced  by  the  ex- 
ercise of  a  lawful  occupation,  should  the  strong  arm  of  a  chancel- 
lor necessarily  be  extended  to  suppress  it."  56     So  where  the  noises 

52.  Per  Lacombe,  C.  J.  °f  human  existence  according  to  the 

53.  See  §§  95,  98,  140,  165,  herein.  standard    of     comfort     prevailing    in 

54.  Sturges  v.  Bridgman,  L.  R.  11  that  locality,  this  is  sufficient  to  con- 
Ch.  Div.  852.  stitute  an  actionable  wrong,  entitling 

In  a  recent  case  in  England  it  is  that  occupier  to  an  injunction.  Rush- 
decided  that  if,  in  a  locality  devoted  mer  v.  Polsue  &  Alfieri  (1906),  1  Ch. 
to  noisy  trades,  such  as  the  printing  234. 

and  allied  trades,  a  printing  house  or  55.  McKeon    v.    See,    4    Rob.     (N. 
factory    subjects    the   occupier   of   an  Y.)     449;   Dallas    v.    Ladies'    Decora- 
adjoining    residence    to    such    an    in-  tive  Art  Club,  4  Pa.  Co.  Ct.  R.  340. 
crease  of  noise  as  to  interfere   sub-           56.  McCaffrey's    Appeal,    105    Pa. 
stantially  with  the  ordinary  comfort  St.  25,  per  Mercur,  C.  J. 

229 


^  185  Noises,  Jars  and  Vibkations. 

complained  of  were  necessarily  and  inseparably  incident  to  the 
conduct  of  a  business  which  was  lawful  and  was  located  in  a  part 
of  the  city  which  was  devoted  exclusively  to  manufacturing,  an 
injunction  wasi  refused.57  And  where  coal  elevators  and  towers, 
such  as  are  ordinarily  used  in  large  seaport  towns  for  loading  and 
discharging  cargoes,  were  erected  in  accordance  with  directions 
from  the  harbor  authorities  and  caused  no  more  noise  than  was 
ordinarily  incident  thereto,  it  was  decided  that  one  who  owned 
a  residence  in  the  section  of  the  city  where  they  were  located  and 
which  by  the  growth  of  the  city  had  become  the  manufacturing 
and  business  centre,  could  not  recover  damages  on  account  of  such 
noise.58  And  where  a  business  was  located  in  a  portion  of  a  city 
occupied  to  some  extent  by  business  enterprises  and  partly  by  dwel- 
lings it  was  decided  that  noises  ordinarily  incidental  to  the  busi- 
ness and  operation  of  the  machinery  which  were  never  deafening, 
and  did  not  disturb  repose,  or  materially  interfere  with  the 
co'mfort  of  ordinary  people,  did  not  constitute  a  nuisance.59 

§  185.  Where  business  legalized. — The  fact  that  the  carrying 
on  of  a  business  or  enterprise  which  produces  noises  has  been  legal- 
ized will  in  many  cases  prevent  it  from  being  regarded  in  law  as 
a  nuisance  which  may  be  enjoined  though  it  would  be  so  consid- 
ered in  the  absence  of  such  authorization.60  So  where  a  company 
was  authorized  by  law  to  construct,  maintain,  and  operate  a  rail- 
road it  was  decided  that  the  use  by  it  of  its  main  tracks  in  pre- 
paring trains  for  departure,  thus  causing  noises  and  vibration 
would  not  be  restrained  as  a  nuisance  in  the  absence  of  any  abuse 
of  the  privilege  or  franchise  granted  by  law.61  And  in  an  action  to 
enjoin  the  maintenance  and  operation  of  railroad  shops  on  account 
of  the  noise  therefrom  it  was  decided  that,  as  the  railroad  was 
authorized  to  build  its  line,  construct  its  shops,  and  acquire  prop- 
erty for  such  purpose,  the  injunction  would  not  be  granted,  but 

57.  Strauss  v.  Barnett,  140  Pa.  59.  Butterfield  v.  Klaber,  52  How. 
Ill,  21  Atl.  253.                                            Pr.    (N.  Y.)   255. 

58.  Robins  v.  Dominion  Coal  Co..  60.  See  Chap.  VI,  herein. 

16  Rap.  Jud.  Queb.  C.  S.  195.  61.  Beideman  v.  Railroad  Co.    (N. 

J.  Ch.),  19  Atl.  731. 

230 


Noises,  Jars  and  Vibrations.  §  186 

that  the  plaintiff  would  be  left  to  his  action  for  damages.62  But 
where  the  law  under  which  an  electric  lighting  company  was  organ- 
ized provided  that  it  should  not  be  exempt  from  any  proceedings 
for  any  nuisance  created  by  it,  it  was  decided  that  it  would  be  en- 
joined from  causing  annoyance  and  discomfort  to  the  occupants 
of  adjoining  premises  by  the  noise  and  vibrations  in  making  ex- 
cavations for  its  foundations,  though  it  had  exercised  due  care  and 
skill  to  avert  a  nuisance.63 

§  186.  Same  subject — Location  not  designated. — In  a  case  in 
Minnesota  a  distinction  has  been  made  between  the  location  of  a 
car  barn  in  a  city  by  a  street  railway  company  and  that  of  a  round 
house  by  a  railroad  company.  It  was  here  decided  that  where  a 
street  railway  company  was  authorized  by  city  ordinances  to  lay 
its  tracks  and  operate  its  system  in  a  city,  the  location  by  it  of  car 
barns  in  a  built-up  portion  of  the  city  which  caused  loud  and  dis- 
agreeable noises  in  the  switching  of  the  cars  was  not  improper  or 
unreasonable,  and  the  company  not  being  guilty  of  any  negligence, 
the  barns  did  not  constitute  a  private  nuisance.64  The  court  said 
in  this  case.  "  There  is  a  radical  difference  between  an  ordinary 
commercial  railway,  operated  by  steam,  and  a  surface  street  rail- 
way, operated  by  electricity,  as  to  the  selection  of  its  round  houses 
and  machine  shops  by  the  one,  and  its  car  barns  by  the  other.  In 
each  case  the  selection  must  be  made  with  reference  to  the  rights 
of  property  owners  in  the  neighborhood ;  also,  those  of  the  railway 
company  and  of  the  public.  The  rights  and  conveniences  of  prop- 
erty owners  cannot  alone  be  considered,  for  one  living  in  a  city 
must  necessarily  submit  to  the  annoyances  which  are  incidentsl 
to  urban  life,  and  individual  comfort  must  in  many  cases  yield  to 
the  public  good.  Now,  the  only  ground  for  claiming  in  this  case 
that  the  location  of  the  defendant's  car  barn  was  an  improper  one 
is  that  it  is  in  the  residence  portion  of  the  city.    But  the  exclusive 

62.  Rainey  v.  Red  River  T.  &  S.  64.  Romer  v.  St.  Paul  City  R.  Co., 
Ry.  Co.  (Tex.  Civ.  App.,  1904),  80  75  Minn.  211,  77  N.  W.  825,  distin- 
S.  W.  95.  guishing    Baltimore   &    P.    R.    Co.   v. 

63.  Shelfer  v.  London  Electric  Fifth  Baptist  Church,  108  U.  S.  317, 
Lighting  Co.  (C.  A.),  (1895)  1  Ch.  27  L.  Ed.  739.  See,  also,  76,  herein. 
287,  64  L.  J.  Ch.   (N.  S.)   216. 

231 


g  1S7  Noises,  Jabs  and  Vibrations. 

mess  of  the  defendant  is  the  carrying  of  passengers'  within  the 
limits  of  the  city  and  in  its  streets.  Its  lines  transverse  the  streets 
he  residence  portion  of  the  city.  Its  business  is  there.  It 
takes  on  and  discharges  passengers  in  all  parts  of  the  city.  It 
must  have  its  car  barns  so  located  that  it  can  promptly  get  its  cars 
upon  its  lines  for  the  purpose  of  enabling  the  people  of  the  city 
to  seasonably  get  from  their  homes  to  their  respective  places  of 
business  or  labor.  It  cannot  locate  its  barns  outside  of  the  city, 
because  it  is  only  authorized  to  build  and  operate  its  lines  within 
the  city  limits  and  upon  its  streets ;  and,  if  it  had  the  authority  to 
do  otherwise,  it  would  be  impracticable  and  detrimental  to  public 
interests  to  do  so.  Again,  if  it  locates  its  barns  at  points  where 
there  are  at  present  no  dwelling  houses,  it  is  only  a  matter  of  time 
when  some  property  owner  will  be  disturbed  by  the  loud  and  dis- 
agreeable noises  necessarily  occasioned  by  taking  its  cars  in  and 
out  of  the  barns.  The  rights  of  such  owner  are  the  same  as  those 
of  the  plaintiff.  The  barn  in  question  is  only  one  of  five  barns 
located  and  used  by  the  defendant  for  the  same  purpose  in  dif- 
ferent parts  of  the  city,  and  the  evidence  conclusively  shows  that 
its  location  is  not  an  improper  or  unreasonable  one."65 

§  187.  Where  nuisance  can  be  avoided. — If  the  noises  or  vibra- 
tions constituting  the  nuisance  can  be  avoided  by  the  aid  of  science 
and  skill,  equity  will  not  enjoin  the  carrying  on  of  a  business  or 
enterprise  which  is  the  cause  of  such  noises  or  vibrations,  but  will 
require  those  things  to  be  done  which  can  be  done  to  avoid  the 
injurious  consequences.66  Thus,  it  was  so  held  in  the  case  of 
noises  caused  by  a  corn  and  flouring  mill.67  And  where  a  noise  or 
jar  from  machinery  can  be  avoided  by  moving  the  machinery  a 
decree  requiring  this  to  be  done  will  be  given.68  And  where  the 
noise  and  jar  complained  of  results  from  a  defect  in  the  machinerv 
remedied.69  So  where  the  noise  complained  of  is  produced  by  an 
the  operation  of  the  machinery  may  be  enjoined  until  the  defect  is 

65.  Per  Start,  C.  J.  J.  Eq.  469 ;  Paeh  v.  Geoffroy,  67  Hun 

66.  Green  v.   Lake,   54  Miss.   540,        (N.   Y.),   401,  51   N.   Y.   St.   R,   777. 

27  Am.  Rep.  378.  22  X.  Y.  Supp.  275. 

67.  Green  v.  Lake,  54  Miss.  540,  69.  Yocum    v.    Hotel     St.   George 

28  Am.  Rep.  378.  Co.,  18  Abb.  N.  C.  (N.  Y.)  340. 

68.  Demarest  v.  Hardham,   34   N. 

232 


Noises,  Jars  and  Vibrations.  §  188 

overloading  of  machinery  such  overloading  may  be  restrained  by 
the  court.70 

§  188.  Jars  and  vibrations. — Jars  and  vibrations  produced 
upon  a  person's  premises  which  cause  injury  to  the  land  or  struc- 
tures of  another  constitute  a  nuisance  which  will  be  enjoined. 
And  the  right  of  jarring  a  structure  upon  the  land  of  another  can- 
not depend  upon  the  utility  or  lawfulness  of  the  purpose  for  which 
the  power  producing  such  jar  it?  employed.71  So,  where  the  work- 
ing of  pumps  in  a  brewery  produced  strong  vibratory  and  jarring 
motions,  which  shook  complainant's  dwelling  and  rendered  it  unfit 
for  habitation,  it  was  decided  that  this  constituted  a  nuisance 
which  would  be  restrained.72  And  where  the  operation  of  machin- 
ery produced  vibrations  which  rattled  the  doors  and  windows  of  a 
house  and  dishes  upon  the  shelves,  and  caused  the  walls  to  crack, 
it  was  decided  that  this  created  a  nuisance  which  would  be  re- 
strained by  the  court,  though  it  appeared  that  such  results  were 
to  a  great  extent,  if  not  entirely,  due  to  the  fact  that  there  was  a 
bed  of  quicksand  beneath  both  properties.73  So,  where  a  person's 
building  was  jarred  and  injured  by  the  vibrations  and  jar  from  a 
steam  engine  an  injunction  was  issued.74  x\nd  the  use  of  a  steam 
hammer  was  enjoined  as  a  nuisance  where  it  so  affected  another's 
building  as  to  render  it  unfit  for  purposes  of  manufacture,  busi- 
ness or  occupancy,  without  risk  to  life  or  limb.75  And  a  municipal 
license  to  run  cable  cars  does  not  authorize  one  to  materially  in- 
jure another  in  his  property  right.  So  a  nuisance  was  held  to 
exist  where  the  use  of  a  steam  engine  to  propel  street  cars  by  cable 
caused  a  continual  jarring  of  a  building  on  adjoining  land,  the 
plaster  to  crack,  and  the  premises  to  be  covered  with  soot.76     But 

70.  Bowden    v.    Illuminating    Co.,  73.  Hennessy     v.    Carmony,    50  N. 
29  Misc.   R.    (N.   Y.)    171,  60  N.  Y.       J.  Eq.  616,  25  Atl.  374. 

Supp.   835.     See,  also,  Miller  v.  Edi-  74.  McKeon     v.     See,     27     N.     Y. 

son  Elec.  Ilium.  Co.,  33  Misc.  R.   (N.  Super.   Ct.   449,   aff'd   51    N.   Y.   300, 

Y.)  664,  68  N.  Y.  Supp.  900.  10  Am.  Rep.  659. 

71.  McKeon    v.    See,    4    Rob.     (N.  75.  Smith      v.      Ingersoll-Sergeant 
Y.)   449.  Rock  Drill   Co.,   7   Misc.   R.    (N.  Y.) 

72.  Dittman  v.  Repp,  50  Md.  516,  374,  27  N.  Y.  Supp.  907. 

33  Am.  Rep.  325.    As  to  breweries  and  76.  Tuebner    v.    California    St.    R. 

distilleries,  see  §   110,  herein.  Co.,  66  Cal.    171,   4  Pac.   1162.     See 

233 


§  189  Noises,  Jaks  and  Vibrations. 

where  the  injury,  discomfort  or  inconvenience  occasioned  by 
vibrations  are  almost  imperceptible  and  wholly  unsubstantial, 
equity  will  not  grant  any  relief.77  x\nd  where  machinery  has  been 
erected  and  used  in  a  lawful  business  for  several  years,  without 
objection  on  the  part  of  a  complainant,  while  the  delay  and  ac- 
quiescence will  not  jeopardise  his  legal  rights,  yet  they  are  cir- 
cumstances which  will  justify  a  court  of  equity  in  refusing  an  in- 
junction and  applying  the  rule  that  a  complainant  having  an  ade- 
quate remedy  at  law  for  the  damages  must  establish  his  right  to 
relief  at  lawT  before  a  court  of  equity  will  interfere.78  In  an  action 
for  injuries  due  to  such  causes  evidence  of  the  fact  that  a  house  in 
the  vicinity  of  plaintiff's  has  been  rented  during  the  entire  period 
is  not  admissible.79 

§  189.  Distinction  between  nuisances  affecting  air  and  those 
affecting  land  or  structures. — A  distinction  is  made  between  that 
class  of  nuisances  which  affect  air  or  light  and  those  which  affect 
the  land  itself  or  the  structures  upon  it.  In  the  former  class  of 
nuisances  such  as  those  caused  by  smoke,  noisome  smells,  or  noises 
there  must  be  a  substantial  annoyance  materially  affecting  one  in 
his  ordinary  comforts  of  his  home,  or  an  injury  to  health,  business 
or  property.  In  the  latter  class  none  of  these  elements  is  essential, 
it  being  sufficient  if  the  jar  or  vibration  sensibly  or  injuriously 
affects  the  land,  dwelling,  or  structure  of  another.80  In  the  case 
just  cited  it  was  said  by  the  court:  "  Upon  reason  and  authority  I 
think  there  is  a  clear  distinction  between  that  class  of  nuisances 
which  affect  air  and  light  merely  by  way  of  noises  and  disagreeable 
gases,  and  obstruction  of  light,  and  those  which  directly  affect  the 
land  itself,  or  structures  upon  it.     Light  and  air  are  elements! 

Rogers  v.  Philadelphia   Traction  Co..  79.  Chamberlain  v.  Missouri   Elec. 

182  Pa.  473,  38  Atl.  399,  61  Am.  St.  L.   &   P.    Co.,    158    Mo.    1,    57    S.   W. 

R.  716.  1021. 

77.  Shaw  v.  Queen  City  Forging  80.  Hennessy  v.  Carmony,  50  N. 
Co.,  7  Ohio  X.  P.  254,  10  Ohio  S.  &  J.  Eq.  616,  25  Atl.  374.  As  to  smoke, 
C.  P.  Dec.  107.  See  Chamberlain  v.  see  §  137,  herein.  As  to  noisome 
Missouri  Elec.  L.  &  P.  Co.,  158  Mo.  smells,  see  §  162,  herein.  As  to 
1,  57  S.  W.  1021.  noises,  see  §   182,  herein. 

78.  Goodall    v.    Crofton.    33    Ohio 
St.  271,  31  Am.  Rep.  535. 

284 


Noises,  Jars  and  Vibrations.  §  189 

which,  mankind  enjoy  in  common,  and  no  one  person  can  have  an 
exclusive  right  in  any  particular  portions  of  either ;  and  as  men 
are  social  beings  and  by  common  consent  congregate,  and  need 
fires  to  make  them  comfortable  and  to  cook  their  food,  it  follows 
that  we  cannot  expect  to  be  able  to  breathe  air  entirely  free  from 
contamination,  or  that  our  ears  shall  not  be  invaded  by  unwelcome 
sounds.  .  .  .  While  my  neighbor  may  stand  by  my  fence  on 
his  own  lot  and  breathe  across  it  over  my  land,  and  may  permit 
the  smoke  and  smell  of  his  kitchen  to  pass  over  it,  and  may  talk, 
laugh  and  sing  or  cry,  so  that  his  conversation  and  hilarity  or  grief 
is  heard  in  my  yard,  he  has  no  right  to  shake  my  fence  ever  so  lit- 
tle, or  to  throw  sand,  earth,  or  water  upon  my  land  in  ever  so  small 
a  quantity.  To  do  so  is  an  invasion  of  property,  and  to  continue 
to  do  so  is  a  nuisance ;  and  if  he  may  not  shake  my  fence  or  my 
house  by  force  directed  immediately  against  them,  I  know  of  no 
principle  by  which  he  may  be  entitled  to  do  it  by  indirect  means. 
.  .  .  The  question  here,  then,  is  not  so  much  whether  the  effect 
of  the  noise  and  vibration  caused  by  the  rapid  revolution  of  the  de- 
fendant's machines  is  to  render  complainant's  house  less  comfort- 
able to  live  in  (though  that  is  a  matter  to  be  considered),  but  rather 
whether  the  complainant's  land  or  dwelling  is  sensibly  and  injur- 
iously affected  by  the  vibration.  If  it  be  so,  then  it  seems  to  me 
he  ought,  in  the  absence  of  any  equitable  defense,  to  be  entitled  to 
relief."  81 

81.  Per  Pitney,  V.  C.  to   the   latter,    namely,   the    personal 

The    words    of    the    court    in    St.  inconvenience    and    interference    with 

Helens   Smelting   Co.   v.   Tipping,    11  one's    enjoyment,    one's    quiet,    one's 

H.   L.   Cas.   642,  650,  are  also  perti-  personal     freedom,     everything     that 

nent  in  this  connection.     It  was  said  discomposes  or  injuriously  affects  the 

in  that   case:      "In   matters   of   this  senses    or    the   nerves,   whether    that 

description  it  appears  to  me  that  it  may   or   may  not   be   denominated   a 

is  a  very  desirable  thing  to  mark  the  nuisance,    must    undoubtedly    depend 

difference  between  an  action  brought  greatly  on  the  circumstances   of   the 

for  a  nuisance  upon  the  ground  that  place  where  the  thing  complained  of 

the   alleged  nuisance   produces   mate-  actually  occurs.     If  a  man  lives  in  a 

rial   injury  to  the  property,   and   an  town,  it  is  necessary  that  he  should 

action  brought  for  a  nuisance  on  the  subject   himself   to   the    consequences 

ground  that  the  thing  alleged  to  be  of   those   operations   of    trade   which 

a  nuisance   is   productive  of  sensible  may  be  carried  on  in  his   immediate 

personal    discomfort.       With    regard  locality,  which  are  actually  necessary 

235 


§§  190,  191  Noisomp;  Smells. 

§  190.  Jar  and  vibraton — Defendant  may  show  injury  due  to 
other  cause. — In  an  action  by  one  for  injuries  caused  by  jar  and 
vibration  produced  upon  the  land  of  another,  the  latter  may  show 
that  the  injuries  alleged  were  due  to  other  causesi  than  complained 
of.  So  where  it  was  alleged  that  the  injuries  complained  of  were 
caused  by  a  jar  from  the  operation  of  defendant's  machinery,  the 
latter  was  permitted  to  show  that  the  jar  and  vibration  from  pass- 
ing railroad  trains  was  many  times  greater  than  that  from  his 
machinery,  as  tending  to  prove  that  the  injuries  were  solely  due  to 
the  latter  cause.82 

§  191.  Damages  recoverable. — In  an  action  by  an  owner  of 
property  for  injury  thereto  caused  by  jar  and  vibration 
there  may  be  a  recovery  for  loss  of  rental  value  but  not 
for  a  reduction  of  rent  on  account  thereof  made  during  the  con- 
tinuance of  a  lease  and  while  the  tenant  could  have  been  com- 
pelled to  pay  the  full  amount  called  for  by  the  lease.83  In  the  case 
of  one  who  leases  property  with  a  knowledge  of  the  fact  that  there 
is  a  jar  and  vibration  caused  by  the  operation  of  machinery  upon 
the  adjoining  premises,  he  cannot,  as  lessee,  recover  therefor  unless 
the  damages  sustained  are  in  excess  of  those  suffered  prior  to  the 
commencement  of  the  lease.84     Again,  in  an  action  to  abate  a  nuis- 

for  trade  and  commerce,  and  also  for  consideration.  I  think,  my  Lords, 
the  enjoyment  of  property,  and  for  that  in  a  case  of  that  description,  the 
the  benefit  of  the  inhabitants  of  the  submission  which  is  required  from 
town  and  of  the  public  at  large.  If  persons  living  in  society  to  that 
a  man  lives  in  a  street  where  there  amount  of  discomfort  which  may  be 
are  numerous  shops,  and  a  shop  is  necessary  for  the  legitimate  and  free 
opened  next  door  to  him,  which  is  exercise  of  the  trade  of  their  neigh- 
carried  on  in  a  fair  and  reasonable  bors,  would  not  apply  to  circum- 
way,  he  has  no  ground  for  complaint,  stances  the  immediate  result  of  which 
because  to  himself  individually  there  is  sensible  injury  to  the  value  of 
may  arise  much  discomfort  from  the  property."  Per  the  Lord  Chancellor, 
trade  carried  on  in  that  shop.  But  82.  Eller  v.  Koehler,  68  Ohio  St. 
when  an  occupation  is  carried  on  by  51,  67  N.  E.  89. 

one  person  in  the  neighborhood  of  an-  83.  Miller   v.   Edison   Elec.   Ilium, 

other  and  the  result  of  that  trade,  or  Co.,  33  Misc.  R.    (N.  Y.)   664,  68  N. 

occupation,  or  business,  is  a  material  Y.  Supp.  900. 

injury   to    property,    then    there   un-  84.  Bly  v.  Edison  Elec.  Ilium.  Co., 

questionably   arises   a   very   different  54  App.  Div.    (N.  Y.)   427,  66  N.  Y. 

236 


Noises,  Jabs  and  Vibrations.  §  191 

ance  and  for  general  damages  but  in  which  the  real  remedy  is  in- 
junction and  the  claim  for  damages'  is  ancillary  only,  it  is  decided 
in  a  recent  case  in  England  that,  the  injunction  being  granted, 
substantial  damages  are  not  recoverable,  but  that  the  plaintiff  is 
entitled  to  recover  something  for  the  injury  prior  to  the  judgment, 
not  by  way  of  compensation,  but  as  an  acknowledgment  of  the 
wrong.8'' 

Supp.    737.      See   further   as   to  this  85.  Lipman   v.   George   Pulman  & 

case  and  case  in  preceding  note,  sec-       Sons,  91  Law  T.   (N.  S.)   132. 
tions  on  Damages  in  chap.  19,  herein. 


237 


CHAPTER   XI. 

Animals  and  Animal  Enclosures. 

Section  192.  Vicious  animals. 

193.  Diseased  animals. 

194.  Animals  at  large  on  highway. 

195.  Dog  a  nuisance  by  his  barking. 

196.  Use  of  animals  shocking  sense  of  decency. 

197.  Ordinances  as  to  animals. 

198.  Dead  animals — Ordinances  as  to. 

199.  Dead  animal  on  railroad  right  of  way — Contributory  negligence. 

200.  Livery  stable  not  a  nuisance  per  se. 

201.  Livery  stable — .Nuisance  from  manner  of  construction  and  con- 

ducting. 

202.  That  stable  properly  built  or  kept  no  defense. 

203.  That  location  of  stable  is  desirable  or  convenient  is  no  defense. 

204.  Private  stable  or  barn. 

205.  Proceeding  to  enjoin  erection  of  stable. 

206.  Proceeding  to  enjoin  proposed  use  of  building  as  stable. 

207.  Evidence  on  the  question  of  nuisance — Stables. 

208.  Cattle  pens,  yards  and   piggeries. 

209.  Stock  yards   and  cattle   cars. 

210.  Construction  and  maintenance  of  stables  or  cattle  enclosures  as 

affected  by  ordinance. 

211.  Damages  recoverable — Cattle  enclosures. 

§  192.  Vicious  animals. — Aside  from  any  question  of  negli- 
gence or  wilful  or  malicious  conduct  on  the  part  of  the  owner  of  a 
domestic  animal  it  was  a  generally  recognized  rule  at  common  law 
that  he  was  not  liable  for  injuries  inflicted  by  such  an  animal  un- 
less it  was  vicious  and  he  had  knowledge  or  notice  of  such  fact.1 

1.  Harvey   v.    Buchanan,    121    Ga.  Knowledge    of    an    attempt    to 

384,  49  S.  E.  281 ;   Feldman  v.  Sellig,  bite  is  a  sufficient  notice  of  viscioua- 

110    111.    App.    131;   Fritsche   v.    Cle-  ness.  Rowe  v.  Ehrmantraut,  92  Minn, 

mow,    109   111.    App.    355;   Carroll    v.  17,  99  N.  W.  211. 

Marcoux.   98    Me.    259,   56    Atl.   848;  If  facts  were  sufficient  to  put 

Feltman    v.    Hencken   &   Willenbrock  a  reasonable  man  on  inquiry  as 

Co.    (N.   Y.    Sup.),   91    N.   Y.   Supp.  to  whether  a  dog  was  dangerous  or 

773.  not    and    the    owner    of    the    animal 

238 


Animals  and  Animal  Enclosures. 


§192 


These  questions  have  generally  arisen  in  cases  where  an  injury  has 
been  inflicted  by  a  dog,  which  when  vicious  is  a  nuisance,2  and  one 
who  keeps  such  an  animal  after  knowledge  of  his  viciousness  does 
so  at  his  peril.3  In  this  connection  it  has  been  declared  that  "  the 
doctrine  is  well  settled  that  the  owner  or  keeper  of  a  domestic  ani- 
mal which  is  vicious  and  prone  or  accustomed  to  do  violence,  hav- 
ing knowledge  of  such  violent  disposition  or  habit,  must  safely  and 
securely  keep  such  animal  so  that  it  cannot  inflict  injury.  Whether 
or  not  there  was  special  negligence  in  permitting  the  dog's  escape 
from  the  premises  is  not  the  inquiry.  The  keeper  must,  at  his 
peril,  safely  keep  such  animal.  Such  is  the  condition  on  which 
the  ownership  or  custody  of  known  vicious  animals  is  tolerated. 
Ownership  or  custody  of  such  vicious  animal  is  not  one  of  the 
natural,  inherent  rights  of  property.  It  is  a  qualified  or  restricted 
right.  Qualified  by  the  condition  that  the  animal  can  be  and  is 
safely  confined  and  kept."  4  So  where  a  person  entered  the  premi- 
ses of  another  from  the  rear,  on  lawful  business,  and  was  bitten  by 
a  ferocious  dog  running  at  large  on  the  premises,  the  owner  was 


failed  to  heed  the  warning  or  totally 
disregarded  such  facts,  he  is  liable  to 
one  injured.  Nelson  v.  Bartlett,  89 
App.  Div.  (N.  Y.)  468,  85  N.  Y.  Supp. 
817. 

The  reputation  of  a  domestic 
animal  for  visciousness  may  be 
shown  on  the  question  of  notice  of 
that  fact  by  the  owner.  Fisher  v. 
Weinholzer,  91  Minn.  22,  97  N.  W. 
426. 

2.  Speckman  v.  Kreig,  79  Mo. 
App.  376,  2  Mo.  App.  Repr.  455. 

A  ferocious  dog  is  a  common 
nuisance  which  may  be  destroyed 
by  any  one.  Woolf  v.  Chalker,  31 
Conn.  121,  81  Am.  Dec.  175,  citing 
Dunlap  v.  Snyder,  17  Barb.  (N.  Y.) 
561. 

3.  Frammell  v.  Little,  16  Ind.  251; 
Speckman  v.  Kreig,  79  Mo.  App.  376, 
2  Mo.  App.  Repr.  455;  Gladstone  v. 
Brunkhoist,  70  N.  J.  L.  130,  56  Atl. 


142;  Boler  v.  Sorgenfrei  (N.  Y.  Sup.. 
1905),  86  N.  Y.  Suppl.  180;  Mann  v. 
Weiand,  81*  Pa.  St.  243;  McCaskill 
v.  Elliott,  5  Str.  L.  (S.  C.)  196,  53 
Am.  Dec.  706. 

4.  Strouse  v.  Leipf,  101  Ala.  433, 
437,  46  Am.  St.  R.  122,  125,  per 
Stone,  C.  J.,  citing  Cooley  on  Torts, 
343,  et  seq.;  1  Addison  on  Torts,  § 
261;  Whittaker's  Smith  on  Negli- 
gence, 99;  2  Shearman  &  Redfield  on 
Negligence,  §§  628,  631;  The  Lord 
Derby,  17  Fed.  265,  1  Am.  &  Eng. 
Encyc.  of  Law,  581;  Garlick  v.  Dor- 
sey,  48  Ala.  222;  Nolan  v.  Trakcr. 
49  Md.  460,  33  Am.  Rep.  277.  See  2 
Cyc.  368,  369,  and  cases  there  cited 
in  support  of  text. 

Where  person  either  as  owner 
or  bailee  has  such  an  animal  in 
charge  the  rule  is  held  to  apply. 
Marsell  v.  Bowman,  62  Iowa,  57,  17 
N.  W.  176. 


239 


§  193  Animals  and  Animal  Enclosures. 

hold  liable  in  an  action  for  damages,  the  court  declaring  "  Though 
the  gate  was  open  and  the  plaintiff  was  on  lawful  business,  it  may, 
be  that  he  had  no  strict  legal  right  to  enter  the  premises  from  the 
rear.  But  this  would  be  no  justification  for  leaving  dangerous  dogs 
loose  on  the  premises,  to  bite  him  or  others  that  might  so  intrude. 
Such  dangerous  means  of  defense  against  mere  trespassers  the  law 
will  not  countenance."  5  And  where  one,  in  the  exercise  of  due 
care,  is  injured  by  a  cow  known  to  the  owner  to  be  vicious  and 
which  he  was  driving  through  a  street,  he  may  recover  from  the 
latter  for  the  injury  sustained.6 

§  193.  Diseased  animals. — In  the  exercise  of  a  person's  right 
to  use  his  own  land  in  his  own  way  it  has  been  decided  that  the 
turning  of  infectiously  diseased  sheep  owned  by  him  into  a  pasture 
adjoining  that  of  his  neighbor  which  is  used  for  a  similar  purpose 
is  not  a  nuisance.7  But  though  an  owner  may  have  the  right  to 
keep  upon  his  premises  animals  suffering  from  a  contagious  dis- 
ease, yet  he  must  use  due  diligence  to  prevent  injury  to  his  neigh- 
bor. Though  the  use  by  one  of  his  stable  as  a  shelter  for  diseased 
animals  may  not  be  a  nuisance,  yet  where  such  stable  is  sep- 
arated from  that  of  his  neighbor  by  a  partition  merely  he  must 
exercise  such  care  as  a  prudent  man  would  exercise  to  prevent  con- 
tact with  his  neighbor's  animals.8  And  an  owner  of  a  diseased  ani- 
mal who  permits  the  same  to  go  at  large  upon  the  highway  or  in 
public  places  where  there  is  danger  of  communicating  the  disease, 
is  liable  as  for  a  nuisance.  So  in  an  English  case  it  was  held  that 
the  bringing  of  a  horse  infected  with  glanders  into  a  public  place  to 
the  danger  of  infecting  the  Queen's  subjects,  was  a  misdemeanor 
at  common  law.9   So  a  person  has  been  "held  liable  in  trespass  for 

5.  Conway  v.  Grant,  88  Ga.  40,  30  9.  Regina  v.  Henson,  1  Dearsley's 
Am.  St.  R.  144,  146,  per  Bleckley,  Crown  Cas.  24,  also  holding  that  an 
C  J.  indictment  which  stated  that  the  de- 

6.  Hewes  v.  McNamara,  106  Mass.  fendant  knew  that  a  mare  which  he 
281.  brought    into    a    fair    was   glandered 

7.  Fisher  v.  Clark,  41  Barb.  (N.  was,  after  verdict,  good,  without  an 
Y. )    329.  averment    that    the    defendant   knew 

8.  Mills  v.  New  York  &  Harlem  R.  that  the  glanders  was  a  disease  com- 
R.   Co.,   2   Rob.    (N.  Y.    Super.  Ct.)  municable  to  man. 

326. 

240 


Ajsimals  and  Animal  Enclosures.        §§  194-196 

the  entry  of  diseased  cattle  owned  by  him  into  another's  close,10  as 
where  sheep  trespassed  upon  the  plaintiff's  land  and  communicated 
a  dangerous  disease  to  his  cattle  with  which  the  sheep  com- 
mingled.11 And  thus  one  owning  diseased  horses  has  no  right  to 
permit  such  animals  to  go  at  large  upon  the  highway  or  to  water 
them  at  a  tank  used  for  watering  sound  horses  owned  by  others.12 

§  194.  Animals  at  large  on  highway. — Where  a  horse  or  colt  is 
unlawfully  at  large  upon  a  highway  it  is  held  to  be  a  nuisance  and 
its  owner  liable  for  any  damage  which  it  may  do  whether  it  is 
vicious  or  not,  Thus  it  was  so  held  where  a  child  three  years  old, 
while  playing  on  the  highway,  was  injured  by  a  kick  from  a  colt, 
it  being  declared  that  the  owner  of  the  animal  was  at  fault  in  per- 
mitting it  upon  the  highway  at  large  without  a  keeper.13 

§  195.  Dog  a  nuisance  by  his  barking. — Where  a  dog  haunts 
the  premises  of  a  person  other  than  his  owner  and  by  his  barking 
and  howling  becomes  a  nuisance  by  reason  of  his  disturbing  the 
peace  and  quiet  of  the  occupants  of  the  dwelling  it  has  been  de- 
cided that  if  the  nuisance  cannot  be  otherwise  prevented,  the  dog 
may  be  killed.14 

§  196.  Use  of  animals  shocking  sense  of  decency. — The  use  of 

animals  in  such  a  manner  as  to  shock  the  sense  of  decency  of  resi- 
dents in  the  vicinity  will  constitute  a  nuisance.  So  where  a  person 
keeps  jacks  and  stallions  and  puts  them  to  mares  within  full  view 

10.  Anderson       v.       Buckton,       1  14.  Woolf    v.    Chalker,    31    Conn. 

Strange,  192.  121,  81  Am.  Dec.  175. 

ll.Barnum  v.  Vandusen,  16  Conn.  A  person   upon  whose  premises   a 

2oo  dog   is   in  the   habit  of   coming   both 

12.  Mills  v.  New  York  &  Harlem  day  and  night,  barking  and  howling, 
R.  R.  Co.,  2  Rob.  (N.  Y.  Super.  Ct.)  to  the  great  annoyance  and  disturb- 
320  ance  of  the  peace  and  quiet  of  such 

13.  Baldwin  v.  Ensign,  49  Conn.  person  and  his  family,  is  held  to  have 
113,  44  Am.  Rep.  205.  See  Dickson  the  right  to  kill  such  animal,  where 
v.  McCoy,  39  N.  Y.  400;  Goodman  he  has  notified  the  owner  and  the  lat- 
v.  Gay,  15  Pa.  St.  188;  Fallon  v.  ter  refuses  or  willfully  neglects  to 
O'Brien,  12  R.  I.  518.  restrain  the  dog.       Brill  v.  Flagler, 

23  Wend.    (N.  Y.),  354. 

241 


I  97,  198        Animals  and  Animal  Enclosures. 

of  the  occupants  of  a  dwelling  house,  it  has  been  held  to  be  such 
a  nuisance  as  would  be  enjoined  by  a  court  of  equity.15  And  the 
fact  that  a  person  purchased  his  residence  after  the  nuisance  was 
established  will  not  preclude  him  from  obtaining  such  relief.16  It 
has,  however,  been  decided  that  authority  given  to  a  municipality 
to  regulate  occupations  and  callings  within  the  city  or  to  abate  nuis- 
ances confers  no  power  upon  the  municipality  to  pass  an  ordi- 
nance providing  that  it  shall  be  a  misdemeanor  to  keep  stallions 
within  the  city  for  service.17 

§  197.  Ordinances  as  to  animals. — Under  the  powers  conferred 
upon  a  municipality  to  exercise  control  over  its  streets  and  to  pre- 
vent and  abate  nuisances  it  ordinarily  has  authority  to  prevent 
animals  running  at  large  in  the  streets  and  may  provide  by  ordi- 
nance that  animals  under  such  circumstances  are  nuisances  and 
may  be  impounded.18  An  ordinance  of  this  character  is  binding 
upon  non-residents  as  well  as  residents. 


is 


§  198.  Dead  animals* — Ordinance  as  to. — A  dead  animal  is  not 
a  nuisance  per  se.20  It  must,  however,  necessarily  become  one 
unless     some     disposition     is     made     of     it     and     a  municipal 

15.  Hayden  v.  Tucker,  37  Mo.  214;  nance  the  running  at  large  of  stock 
Farrell  v.  Cook,  16  Neb.  483,  20  N.  and  adjudging,  where  it  has  run  at 
W.  720,  49  Am.  Rep.  721.  large,   a    forfeiture   thereof   and   con- 

16.  Hayden  v.  Tucker,  37  Mo.  214.  ferring  a   right  on   the  municipality 

17.  Ex  parte  Robinson,  30  Tex.  to  sell  the  same.  As  to  municipal 
Civ.  App.  473,  17  S.  W.  1057.  Com-  powers  over  highways,  see  §§  260-263, 
pare  Hoops  v.  Ipava,  55  111.  App.  94.  herein. 

18.  Roberts  v.  Ogle,  30  111.  459,  The  obtaining  of  licenses  for 
83  Am.  Dec.  201;  Quincy  v.  O'Brien,  dogs  may  be  required  under  an  ordi- 
24  111.  App.  591;  Crosly  v.  Warren,  nance  giving  the  right  to  prevent  and 
1  Rich.  L.  (S.  C.)  385;  Moore  v.  remove  nuisances.  Washington  v. 
State,  11  Lea  (Tenn.),  35.  Com-  Lynch,  Fed.  Cas.  No.  17231,  5  Cranch 
pare  Vorden  v.  Mount,  78  Ky.  86,  39  C.  C.  498. 

Am.  Rep.  208,  holding  that  authority  19.  Whitfield  v.  Longest,  28  N.  C. 

to  a  town  to  enact  ordinances   "  for  268.        See    Buffalo    v.    Webster,    10 

the  safety  of  property,  the  abatement  Wend.    ( N.    Y. )    99 ;  Hellen   v.    Noe, 

or    prevention   of   nuisances    and   for  25  N.  C.  495. 

the  convenience  of  the  public  good  "  20.  Schoen  v.  Atlanta,  97  Ga.  697. 

confers  no  right  to   forbid   by  ordi-  25  S.  E.  380,  33  L.  R.  A.  804;  Un- 

242 


Animals  and  Animal  Enclosures. 


§198' 


corporation  has  the  right  to  prevent  the  carcasses  of 
dead  animals  from  becoming  nuisances  and  to  that  end 
may  prescribe  by  a  reasonable  ordinance,  the  manner  and 
time  in  which  owners  may  remove  them  and,  in  case  of 
their  failure  to  remove  them  in  the  time  specified,  to  provide  other 
means.21  An  owner,  however,  has  certain  property  rights  in  a  dead 
animal  of  which  he  cannot  be  arbitrarily  deprived  by  ordinance 
without  regard  to  the  question  whether  the  carcass  has  become  a 
nuisance  or  not.  Therefore  while  a  municipality  is  clothed  with 
ample  authority,  in  the  exercise  of  its  police  power,  to  protect 
the  public  against  nuisances  per  se,  or  anything  that  is  likely  to 
become  an  offensive  and  dangerous  nuisance,  it  cannot,  in  the  ab- 
sence of  such  conditions,  in  the  first  instance,  deprive  the  owner 
of  his  property  in  the  carcass  of  a  dead  animal  without  due  process 
of  law.22  So  an  ordinance  of  a  city  will  not  be  valid  where  it  pro- 
vides in  substance  that  immediately  upon  the  death  of  an  animal, 
the  owner  shall  be  deprived  of  his  property  therein  as  such  a  pro- 
vision is  a  taking  of  private  property  without  due  process  of  law.23 
But  where  the  depositing  of  the  carcasses  of  animals  in  certain 
places  is  a  nuisance  under  the  statute,   the  offense   is  complete 


derwood  v.  Green,  42  N.  Y.  140; 
Richmond  v.  Caruthers  (Va.,  1905), 
50  S.  E.  265. 

21.  Schoen  v.  Atlanta,  97  Ga.  697, 
25  S.  E.  380,  33  L.  R.  A.  804;  Meyer 
v.  Jones,  20  Ky.  Law  Rep.  1632.  49 
S.   W.   809. 

Particular  ordinance  con- 
strued. Under  an  ordinance  impos- 
ing upon  the  owner  of  a  dead  animal 
the  duty  of  disposing  of  the  carcass 
in  such  a  manner  that  it  shall  not 
become  a  nuisance  or  of  notifying 
one  with  whom  the  city  had  entered 
into  a-  contract  for  removal  in  such 
cases  "  within  twenty-four  hours 
where  such  carcass  may  be  found," 
and  that  it  shall  be  removed  by  no 
other  person  except  the  latter  fail 
to     remove     it     within     twenty-four 


hours  after  he  is  notified,  it  has  been 
decided  that  for  the  twenty-four 
hours  immediately  following  the 
death  of  an  animal  the  owner  may 
dispose  of  the  carcass  in  any  manner 
he  sees  fit.  Alpers  v.  Brown,  60  Cal. 
447. 

22.  Richmond  v.  Caruthers  (Va.. 
1905),  50  S.  E.  265,  per  Whittle,  J. 
See  Yates  v.  Milwaukee,  10  Wall.  (U. 
S.)  505,  19  L.  Ed.  384;  Schoen  v. 
City  of  Atlanta,  97  Ga.  697,  25  S. 
E.  380,  33  L.  R.  A.  804;  State  v. 
Paysson,  47  La.  Ann.  1029,  17  So. 
481,  49  Am.  St.  R.  390;  Rendering 
Co.  v.  Behr,  77  Mo.  91,  46  Am.  Rep. 
f> ;  Underwood  v.  Green,  42  N.  Y. 
140. 

23.  Richmond  v.  Caruthers  (Va., 
1905).  50  S.  E.  265. 


243 


§£  199,  200        Animals  and  xVnimal  Enclosures. 
upon  proof  of  the  act  specified,  without  regard  to  the  intent  of  the 

•    i  '  j.  24 

person  violating  it 

§  199.  Dead  animal  on  railroad  right  of  way — Contrioutory 
negligence. — Where  a  nuisance  is  created  by  the  carcass  of  a  dead 
animal  upon  a  railroad  right  of  way  which  is  enclosed,  one  bring- 
ing an  action  to  recover  damages  for  such  nuisance  is  not  charge- 
able with  contributory  negligence  in  failing  to  enter  such,  right 
of  way  and  remove  the  carcass  complained  of,  as  to  do  this  would 
amount  to  a  trespass  which  one  is  under  no  obligation  to  commit 
in  such  cases.25 

§  200.  Livery  stable  not  a  nuisance  per  se. — Though  a  livery 
stable  in  a  built-up  section  of  a  city  is  a  matter  of  some  annoyance 
to  the  occupants  of  property  in  the  immediate  vicinity  and  may, 
to  a  certain  extent,  affect  their  comfort,  especially  if  the  locality  is 
a  residential  one,26  yet  it  is  a  generally  accepted  doctrine  that  a 
livery  stable,  even  in  a  town  or  city,  is  not  necessarily  or  prima 
facie  a  nuisance.27    And  in  an  action  to  abate  as  a  nuisance  a  use  of 


24.  Seacord  v.  People,  121  111. 
623,  13  N.  E.  194.  As  to  statutory 
nuisances,  see  §  81-83,  herein. 

25.  Missouri,  K.  &  T.  It.  Co.  v. 
Burt  (Tex.  Civ.  App.),  27  S.  W.  948. 

26.  "  It  cannot  be  denied  that  a 
livery  stable  in  a  town  adjacent  to 
buildings  occupied  as  private  resi- 
dences is,  under  any  circumstances, 
a  matter  of  inconvenience  and  annoy- 
ance and  must  more  or  less  affect  the 
comfort  of  the  occupants  as  well  as 
diminish  the  value  of  the  property 
for  the  purpose  of  habitation.  But 
this  is  equally  true  of  various  other 
erections  that  might  be  mentioned 
which  are  indispensible  and  which  do 
and  must  exist  in  all  towns."  Per 
Roberts,  J.,  in  Metropolitan  Savings 
Bank  v.  Manion,  87  Md.  68,  39  Atl. 
70. 


27.  Phillips  v.  Denver,  19  Colo. 
179,  34  Pac.  902,  41  Am.  St.  P.  230; 
Shivery  v.  Streeper,  24  Fla.  103,  3 
So.  865;  Shiras  v.  dinger,  50  Iowa, 
571,  32  Am.  Rep.  138;  King  v. 
Hamill,  97  Md.  103,  54  Atl.  625; 
Metropolitan  Savings  Bank  v.  Man- 
ion,  87  Md.  68,  39  Atl.  70;  St.  Louis 
v.  Russell,  116  Mo.  248,  22  S.  W. 
470,  20  L.  R.  A.  721,  41  Am.  &  Eng. 
Corp.  Cas.  375;  Dorgan  v.  Waddill, 
31  N.  C.  244,  49  Am.  Dec.  421; 
Fisher  v.  Sanford,  12  Pa.  Super.  Ct. 
435;  Harvey  v.  Ice  Co.,  104  Tenn. 
583,  58  S.  W.  316;  Kirkman  v. 
Handy,  11  Humph.  (Tenn.)  406,  54 
Am.  Dec.  45;  Burditt  v.  Swenson,  17 
Tex.  489,  67  Am.  Dec.  665;  Flint  v. 
Russell,  Fed.  Cas.  No.  4876,  5  Dill. 
151.  Compare  Coker  v.  Birge,  10 
Ga.  336. 


244 


Animals  and  Animal  Enclosures.  §  201 

property  for  such  a  purpose  the  burden  is  on  the  complainant  to 
show  that  it  is  a  nuisance.28 

§  201.  Livery  stable  nuisance  from  manner  of  construction  or 
conducting. — Though  a  livery  stable  is  not  a  nuisance  per  se,29  it 
may  become  one  by  reason  of  the  manner  in  which  it  is  constructed 
or  conducted.30  And  one  using  property  for  such  a  purpose  must 
exercise  care  to  prevent  it  from  becoming  a  nuisance.111  So  where 
the  odors-  and  noises  from  a  livery  stable  occasion  substantial  an- 
noyance or  discomfort  to  the  occupants  of  adjoining  premises  or 
impair  their  value  for  their  reasonable  and  natural  use  an  action- 
able nuisance  is  created.32  It  is  not  necessary  to  enable  one  to 
maintain  an  action  for  such  a  nuisance  that  his  dwelling  house 
should  be  rendered  useless  thereby,  it  being  sufficient  if  the  injury 
is  such  as  to  render  the  enjoyment  of  life  uncomfortable.  There- 
fore where  the  noises  and  smells  from  a  livery  stable  are  such  as 
to  produce  this  result  or  to  render  the  home  uncomfortable  as  a 
dwelling  house  and  unfitted  for  the  proper  purposes  for  which 
it  was  designed,  it  is  sufficient.33  And  it  has  been  held  to  be  no 
defense  to  such  an  action  that  there  was  a  smaller  stable  in  exist- 
ence upon  the  defendant's  premises  before  the  plaintiff's  house  was 

28.  Fisher  v.  Sanford,  12  Pa.  32.  Dorgan  v.  Waddill,  31  N.  C. 
Super.  Ct.  435.  244,  49  Am.  Dec.   421;      Robinson  v. 

29.  See  preceding  section.  Smith;  53   Hun    (N.  Y.),  638,   7   N. 

30.  Phillips  v.  Denver,  19  Colo.  Y.  Supp.  38;  Drysdale  v.  Dugas,  Rap. 
179,  34  Pac.  902,  42  Am.  St.  R.  230;  Jud.  Queb.  6  Q.  B.  278. 
Metropolitan  Savings  Bank  v.  Man-  A  police  ambulance  stable 
ion,  87  Md.  68,  39  Atl.  90;  St.  Louis  though  owned  by  a  municipality  and 
v.  Russell,  116  Mo.  248,  22  S.  W.  used  by  it  in  the  exercise  of  its  gov- 
470,  20  L.  R.  A.  721,  411  Am.  &  Eng.  ernmental  powers  or  functions, 
Corp.  Cas.  375;  Dorgan  v.  Waddill,  should  be  maintained  by  the  munici- 
31  N.  C.  244,  49  Am.  Dec.  421;  Fil-  pality  in  a  proper  condition  and  it 
son  v.  Crawford  (N.  Y.  Sup.),  5  N.  will  be  liable,  where  the  stable  is  so 
Y.  Supp.  882,  23  N.  Y.  St.  R.  335;  conducted  as  to  become  a  nuisance, 
Harvey  v.  Ice  Co.,  104  Tenn.  583,  58  to  one  injured  thereby  without  re- 
S.  W.  316;  Kirkman  v.  Handy,  11  gard  to  the  question  whether  it  de- 
Humph.  (Tenn.)  406,  54  Am.  Dec.  rives  any  profit  from  the  mainte- 
45;  Burditt  v.  Swenson,  17  Tex.  489,  nance  of  such  stable.  Roth  v.  Dis- 
67  Am.  Dec.  665.  trict  of  Columbia,  16  App.  D.  C.  323. 

31.  Dorgan  v.  Waddill,  31  N.  C.  33.  Aldrich  v.  Howard,  8  R.  I. 
244,  49  Am.  Dec.  421.  246. 

245 


£§  202,  203        Animals  and  Animal  Enclosures. 

built  and  that  such  stable  caused  as  great  an  annoyance  as  the  one 
complained  of."4  And  a  landlord  is  held  to  be  a  proper  party  de- 
Inn  hint  with  his  tenant  to  an  action  for  damages  to  enjoin  the 
nuisance  where  the  former  consented  to  the  construction  and  main- 
tenance of  such  a  nuisance  by  the  latter  and  was  notified  of  the 
nuisance  and  requested  to  abate  the  same.35 

§  202.  That  stable  properly  built  or  kept  no  defence. — The 
fact  that  a  livery  stable  is  properly  built  or  is  carefully  conducted 
and  maintained  is  no  defence  where  a  nuisance  actually  exists.36 
As  is  said  in  this  connection  in  a  case  in  Rhode  Island,  "  Yet  if  it 
is  so  built  or  so  used  as  that  it  destroys  the  comfort  of  persons  own- 
ing and  occupying  adjoining  premises,  creating  such  an  annoyance 
as  to  render  life  uncomfortable,  then  it  is  none  the  less  a  nuisance, 
that  it  is  well  kept,  carefully  built  and  as  favorably  located  as  the 
town  will  admit.  The  question  still  is,  does  it  in  fact  render  life 
uncomfortable?  Ihe  admissions  imply  no  more  than  that  if  care  in 
building  and  proper,  careful  keeping  would  have  prevented  the  in- 
jurious effects  complained  of,  they  would  not  have  resulted  from 
the  use  of  this  stable.  But  the  claim  of  the  plaintiff  is,  that  they 
were  insufficient  to  prevent  it,  and  the  question  was  stated  did  this 
stable  injuriously  affect  the  plaintiff's  dwelling  to  the  extent 
alleged  ?"  37  So  where  the  odors  from  a  livery  stable  cause  a  sub- 
stantial inconvenience  and  annoyance  to  residents  in  the  neighbor- 
hood, it  is  no  defense  to  an  action  therefor  that  in  the  construction 
of  the  stable  it  was  equipped  with  all  modern  improvements  for 
drainage  and  ventilation.38 

§  203.  That  location  of  stable  is  desirable  or  convenient  is  no 
defense. — It  is  no  defense  to  an  action  for  nuisance  consisting  of  a 
stable  that  the  location  is  a  desirable  one  and  furnishes  accommo- 

34.  Filson  v.  Crawford  (N.  Y.  Tramways  Co.  (1893),  2  Ch.  588.  As 
Sup. ) ,  5  N.  Y.  Supp.  882,  23  N.  Y.  to  negligence  as  an  element  in  case  of 
St.  R.  335.  a  trade  or  business,  see  §  92,  herein. 

35.  Robinson  v.  Smith,  53  Hun  37.  Aldrich  v.  Howard,  8  R.  I. 
(N.  Y.),  638,  7  N.  Y.  Supp.  38.  246,  249,  per  Brayton,  J. 

36.  Filson  v.  Crawford  (N.  Y.  38.  Drysdale  v.  Dugas,  26  Can.  S. 
Sup.),  5  N.  Y.  Supp.  882,  884,  23  N.  C.  20.  As  to  noisome  smells,  see  §§ 
Y.    St.    R.    335;      Rapier   v.    London  157-173,   herein. 

246 


Animals  and  Animal  Enclosures.  §  204 

dations  for  those  in  its  vicinity.39  As  was  said  by  the  court  in  this 
case:  "It  would  doubtless  be  a  desirable  arrangement  for  many 
persons  engaged  in  keeping  livery  or  boarding  stables,  and  also 
be  convenient  for  some  of  their  customers,  if  such  stables  could 
be  located  upon  every  block  in  the  finest  street  in  the  city,  but  it 
will  hardly  be  claimed  that  such  stables  should  be  so  located  when 
the  inevitable  result  would  be  to  cause  incalculable  injury  to  the 
adjoining  property.  The  evidence  shows  that  there  were  numer- 
ous other  places,  nor  far  from  the  location  selected  by  the  defend- 
ants, which  could  have  been  purchased  for  stable  purposes  and  at 
less  prices  than  that  which  was  paid  by  defendants  for  the  property 
upon  which  their  stable  is  now  located.  The  evidence  shows  that 
Seventy-second  and  Seventy-third  streets  are  two  of  the  finest 
streets  on  the  west  side  of  the  city,  and  it  seems  to  me  that  the  use 
of  the  property  purchased  and  owned  by  the  defendants  for  a 
stable,  which  is  so  kept  as  to  be  a  nuisance,  is  most  unreasonable."4 

§  204.  Private  stable  or  barn. — A  private  stable  or  barn,  like 
a  livery  stable,  is  not  a  nuisance  per  se,  but  may  become  one  from 
the  manner  in  which  it  is  built  or  kept.41  As  is  said  in  one  case, 
"  while  the  building  of  this  stable  may  not  be  a  kindly  or  neigh- 
borly act,  yet  with  this  the  courts  have  nothing  to  do,  they  are  sim- 
ply to  decide  whether  in  itself  it  is  an  unlawful  one,  and  therefore 
to  be  suppressed."  42  So  an  owner  is  injured  in  his  property  rights 
and  is  entitled  to  an  injunction  where  the  odors  from  a  stable  on 
adjoining  premises  are  so  offensive  as  to  render  the  occupancy  of 
the  property  by  his  tenants  materially  uncomfortable  and  disagree- 

39.  Filson  v.  Crawford,  5  N.  Y.  181,  57  Atl.  672;  Hockaday  v. 
Supp.   882,  23  N.  Y.  St.  R.  335.  Wortham,  22  Tex.  Civ.  App.  419,  54 

40.  Per  Andrews,  J.  See,  also,  S.  W.  1094;  Gifford  v.  Hulett,  62  Vt. 
Aldrich  v.  Howard,  8  R.  I.  246.  342,  346,  19  Atl.  230. 

41.  St.  James  Church  v.  Arring-  Though  constructed  in  viola- 
ton,  36  Ala.  546,  76  Am.  Dec.  332;  tion  of  an  ordinance  on  the  build- 
Kaspar  v.  Dawson,  71  Conn.  405,  42  ing  line  of  a  street  it  is  not  a  nui- 
Atl.  78;  Rounsaville  v.  Kohlheim,  sance  per  se.  King  v.  Hamilll,  97 
68  Ga.  668,  45  Am.  Rep.  505;  Keiser  Md.  103,  54  Atl.  625. 

v.  Lovctt,  85  Ind.  240,  44  Am.  Rep.  42.  Rounsaville    v.    Kohlheim,    68 

10;  Albany  Christian  Church  v.  Wil-  Ga.    668,    45    Am.    Rep.    505.        Per 

born,   23  Ky.  Law   Rep.   1820,   66   S.  Crawford,  J. 
W.  285;   Gallagher  v.   Flury,   99  Md. 

247 


&  205  Animals  and  Animal    Enclosures. 

able.43  In  such  cases,  however,  where  the  nuisance  consists  of 
the  manner  in  which  the  stable  or  barn  is  kept,  the  use  of  the  same 
will  not  be  perpetually  enjoined  but  an  injunction  will  be  pranted 
to  prevent  the  continuance  of  the  particular  causes  which  consti- 
tute the  nuisance.  So  where  a  defendant  had  been  in  the  habit)  of 
depositing  manure  from  his  barn  between  the  barn  and  the  street, 
it  was  decided  that  the  trial  court  might  enjoin  the  defendant  from 
so  depositing  it  within  a  certain  distance  of  plaintiff's  premises, 
it  not  appearing  that  the  distance  was  unreasonable  or  that  it  was 
adopted  arbitrarily  and  without  evidence.  And  in  such  a  case 
there  is  not  an  unreasonable  interference  with  a  defendant's  rights 
in  requiring  him  to  remove  manure  from  his  premises  daily.44 
Again  where  the  nuisance  consists  of  several  causes,  part  of  which 
have  been  removed  since  the  commencement  of  the  action,  it  has 
been  decided  that  the  injunction  should  be  so  framed  as  to  prevent 
the  continuance  of  the  nuisance  existing  at  the  time  of  the  trial. 4j 

§  205.  Proceeding  to  enjoin  erection  of  stable. — As  neither  a 
livery  nor  a  private  stable  is  a  nuisance  per  se,  an  injunction  re^ 
straining  the  erection  of  a  structure  to  be  used  for  such  a  purpose 
will  not  be  granted  unless  it  appear  in  the  particular  case  that  it 
will  in  fact  be  a  nuisance.46  So  where  a  building  used  as  a  livery 
stable  had  been  burned  down  the  court  refused  to  enjoin  its  rebuild- 
ing and  use  for  such  purpose.47  So  it  was  decided  that  an  injunc- 
tion restraining  the  erection  of  a  stable  on  a  lot  adjoining  that  on 
which  plaintiff's  residence  was  situated  on  the  ground  of  antici- 
pated annoyances  and  inconveniences  consisting  of  bad  odors  and 
the  gathering  of  vermin,  would  not  be  granted,  as  thes©  resultis 
were  mere  conjectures  or  apprehensions  which  would  be  realized 

43.  Kaspar  v.  Dawson,  71  Conn.  46.  Keiser  v.  Lovett,  85  Ind.  240, 
405,  42  Atl.  78,  holding  that  he  is  en-  44  Am.  Rep.  10;  King  v.  Hamill,  97 
titled  to  such  relief  though  his  ten-  Md.  103,  54  Atl.  625;  Flint  v.  Rus- 
ants  are  not  made  parties  to  the  pro-  sell,  Fed.  Cas.  No.  4876,  5  Dill.  151. 
ceedin<*.  As  to  injunction  against  erection  of  a 

44.  Kaspar  v.  Dawson,  71  Conn.  building  for  business  or  trade,  see  § 
405,  42  Atl.  78.     See,  also,  Gifford  v.  103,  herein. 

Hulett,  62  Vt.  342,  19  Atl.  230;  Cur-  47.  Shiras    v.    dinger,    50    Iowa, 

tis  v.  Winslow,  38  Vt.  690.  571,  33  Am.  Rep.  138. 

45.  Trulock    v.    Merte,    72    Iowa, 
510,  34  N.  W.  307. 

248 


Animals  and  Animal  Enclosures.  §  205 

if  the  stable  should  be  neglected  and  filth  allowed  to  accumulate, 
which  condition  was  not  to  be  presumed.48  And  in  another  case 
it  was  seld  that  the  court  would  not  enjoin  the  erection,  near  a 
church,  of  a  building  to  be  used  as  a  stable,  on  the  ground  that  it 
would  be  a  nuisance  when  used  for  the  purpose  proposed.49  So  in 
this  case  it  was  said :  "  A  private  stable  near  a  church,  does  not 
belong  to  the  class  of  erections  which  are  unavoidably  and  in 
themselves  nuisances.  That  it  may  become  a  nuisance,  is  no  doubt 
true ;  but  the  question  whether  or  not  it  will  prove  to  be  one  de- 
pends, in  a  great  measure,  upon  its  proximity  to  the  church,  the 
manner  in  which  it  may  be  built,  the  number  of  horses  placed  in  it, 
and  the  degree  of  care  with  which  it  may  be  kept;  and  hence  it 
is  not  susceptible  of  definite  settlement,  until  the  building  is  com- 
pleted and  applied  to  the  use  for  which  it  was  designed."  50  Again, 
where  by  statute  the  use  and  occupation  of  a  building  for  a  livery 
stable  or  a  stable  for  taking  or  keeping  horses  and  carriages  for 
hire  or  to  let  within  two  hundred  feet  of  a  church  or  meeting  house 
erected  and  used  for  the  public  worship  of  God,  without  the  con- 
sent in  writing  of  the  religious  society  or  parish  worshipping  there- 
in, was  prohibited,  it  was  decided,  in  a  bill  in  equity  to  enjoin 
the  erection  of  a  stable  as  being  in  violation  of  the  statute,  that 
such  statute  was  not  applicable  where  the  stable  to  be  constructed 
was  to  be  let  out  in  specified  parts  to  tenants  who  were  to  take  care 
of  their  own  horses,  as  the  legislature  had  drawn  the  line  between 
stables  where  horses  were  taken  in  for  pay  or  were  kept  to  be  let 
out  on  the  one  hand  and  all  other  stables  on  the  other  hand,  and 
that  the  proposed  stable  belonged  to  the  latter  class.51  And  it  has 
been  declared  that  an  individual  cannot  complain  of  the  erection  of 
a  building  to  be  used  as  a  stable  in  violation  of  an  ordinance  of  a 
city  or  town  unless  it  is  shown  that  the  erection  will  work  special 
and  irreparable  injury  to  him  and  his  property.52  If,  however,  it 
is  shown  that  the  livery  stable,  when  erected  and  in  use,  will  con- 

48.  Gallagher    v.     Flury,    99    Md.       O'Connell,    187   Mass.   236,   72  N.   E. 
181,  57  Atl.  672,  675.  1011,  construing  Mass.  R.   L.  c.   102, 

49.  St.  James   Church   v.  Arring-       §  70. 

ton,  36  Ala.  546,  76  Am.  Dec.  332.  52.  King  v.   Hamill,   97   Md.    103, 

50.  Per  R.  W.  Walker,  J.  54  Atl.  625,  per  Boyd,  J. 

51.  Congregation    Beth    Israel    v. 

249 


§  206  Animals  and  Animal  Enclosures. 

stitute  a  nuisance  it  is  then*  decided  that  its  erection  will  be  en- 
joined.53 So  where  a  person  was  about  to  erect  a  livery  stable,  with 
a  plank  floor,  on  a  public  street  in  a  city,  upon  his  own  land,  for 
the  purpose  of  keeping  horses  therein,  within  sixty-five  feet  of  a 
public  hotel  owned  and  kept  by  another,  and  the  latter  having  ap- 
plied for  an  injunction,  alleging  that  the  erection  of  the  stable 
would  cause  irreparable  injury  to  his  property  in  said  hotel,  and 
result  in  the  loss  of  health  and  comfort  to  himself  and  family,  and 
in  the  loss  of  patronage  to  his"  hotel,  in  consequence  of  the  un- 
healthy effluvia  that  would  arise  from  the  stable,  the  collection  of 
swarms  of  flies,  and  the  stamping  of  horses  therein,  it  was  held 
that  the  erection  of  the  stable  at  the  place  stated  would  operate 
as  a  nuisance  to  the  owner  of  the  hotel  and  that  he  was  entitled 
to  an  injunction  to  restrain  its  erection.54  And  it  is  decided  that  a 
party  will  not  be  precluded  from  his  right  to  maintain  such  an 
action  by  the  fact  that  he  has  leased  his  property  for  a  term  of 
years  and  is  not  in  possession  thereof.55 

§  206.  Proceeding  to  enjoin  proposed  use  of  building  as  stable. 
— 'The  use  of  a  building  for  the  purposes  of  a  livery  stable  not 
being  in  itself  a  nuisance,  a  court  will  not  restrain  the  proposed  use 
of  a  building  for  such  a  purpose  in  the  absence  of  evidence  show- 
ing that  such  use  will  actually  result  in  a  nuisance.  Therefore, 
where  it  was  sought  to  enjoin  the  use  of  a  building,  contiguous 
to  plaintiff's  dwelling,  for  the  purpose  of  stabling  horses  on  the 
ground  of  noxious  and  offensive  odors  therefrom,  the  court  refused 
to  enjoin  such  use  where  the  affidavits  of  the  defendants  alleged 
that  the  building  would  be  used  without  oausing  any  annoyance 
or  injury  to  adjoining  owners.56 

53.  Filson  v.  Crawford  (N.  Y.  to  permit  the  experiment  to  be  made 
Sup.),  5  N.  Y.  Supp.  882,  23  N.  Y.  whether  a  livery  stable  could  be  con- 
st. R.  335;  Collins  v.  City  of  Cleve-  structed  and  maintained  in  such  a 
land,   2   Ohio    S.   &    C.    P.   Dec.    380.  manner  as  not  to  be  a  nuisance. 

See   Aldrich  v.   Howard,   7   R.   I.   87,  55.  Filson     v.     Crawford     (N.    Y. 

80  Am.  Dec.  636.  Sup. ) .  5  N.  Y.  Supp.   882,  23  N.   Y. 

54.  Coker  v.  Birge,  9  Ga.  425,  54       St.   R.   335. 

Am.  Dec.  347,  S.  C.  10  Ga.  336,  hold-  56.  Stilwell      v.      Buffalo     Riding 

ing  that  the  court  would  not  dis-  Academy,  21  Abb.  N.  C.  (N.  Y.)  472, 
charge  the  ad  interim  interdict  so  as      4  N.  Y.  Supp.  414. 

250 


Animals  and  Animal  Enclosubes.        §§  207,  208 

§   207.   Evidence  on   the    question    of    nuisance— Stables. — 
Where  a  plaintiff  complains  of  such  a  nuisance  to  his  dwelling  ren- 
dering the  air  unwholesome,  evidence  is  admissible  to  show  the 
condition  of  the  atmosphere  in  the  plaintiff's  dwelling  from  the 
time  of  the  erection  of  the  stable  complained  of  down  to  the  time 
of  trial.57     An  the  fact  that  there  has  been  a  great  congregation 
of  flies  about  the  plaintiffs  premises  since  the  annoyance  com- 
plained of  is  one  which  may  be  legitimately  considered  in  con- 
nection with  other  evidence.58     In  an  action,  however,  to  enjoin 
the  maintenance  of  such  a  nuisance  on  the  ground  of  the  unwhole- 
some odors,   a  defendant  should  be  permitted  to  show  that  the 
odors  complained  of  came  from  other  sources  than  his  stable.59 
But  in  such  a  case  the  question  is  whether  the  stable  complained 
of  is  a  nuisance  and  not  any  other  stable  and  therefore  it  is  proper 
to  exclude  evidence  offered  by  a  defendant  for  the  purpose  of 
showing  that  other  stables  similarly  situated  did  not  create  such 
annoyances  as  are  alleged.60    Where  the  facts  are  fully  presented 
to  the  jury  so  that  they  may  judge  for  themselves  whether  a  nuis- 
ance exists,  a  witness  cannot  be  asked  whether  in  his  opinion  the 
conditions  as  shown  by  the  evidence  constitute  a  nuisance.61 

§  208.  Cattle  pens,  yards  and  piggeries. — The  existence  in 
cities  or  populated  sections  of  pens  or  other  enclosures  for  cattle 
from  which  noises  and  unhealthy  odors  are  emitted  which  cause 
substantial  annoyancs  to  the  occupants  of  neighboring  property 
and  injures  another  either  in  his  health  or  business,  constitutes 
a  nuisance  which  may  be  enjoined.62  So  a  nuisance  exists  where 
stock  pens  used  in  connection  with  a  slaughter  house  are  permitted 
to  become  and  remain  in  a  filthy  condition,  thus  continuously  emit- 
ting noxious  odors.63     So  a  piggery  will  be  regarded  as  a  nuisance 

57.  Robinson    v.    Smith,    53    Hun  40  Ind.  278;   Beckham   v.   Brown,   19 
(N.  Y.),  638,  7  N.  Y.  Supp.  38,  42.  Ky.    Law    Rep.   519,   40   S.    W.   684; 

58.  Robinson    v.    Smith,    53    Hun  Board   of   Aldermen   of   Opelousas   v. 
(N.  Y.),  638,  7  N.  Y.  Supp.  38,  42.  Norman,    51    La.    Ann.    736,    25    So. 

59.  Kaspar   v.    Dawson,    71    Conn.  401;   State,  Raritan  Township  Bd.  of 
405,  42  Atl.  78.  Health   v.    Henzler    (N.   J.    Ch.),   41 

60.  Aldrieh    v.    Howard,    8    R.    I.  Atl.  228.     See  Dubois  v.  Budlong,  10 
246.  Bosw.    (N.   Y.)     700.,    15    Abb.    Prae. 

61.  Metropolitan  Savings  Bank  v.  445. 

Manion,  87  Md.  68,  39  Atl.  90.  63.  Wilcox      v.      Henry      (Wash., 

62.  Ohio  &  M.  Ry.  Co.  v.  Simon,       1904),  77  Pac.  1055. 

251 


§  208  Animals  and  Animal  Enclosures. 

where  it  is  maintained  in  a  locality  where  the  odors  therefrom 
pollute  the  atmosphere  so  as  to  substantially  annoy  the  public  or 
interfere  with  comfortable  occupation  and  enjoyment  of  a  dwel- 
ling by  the  occupant.64     In  reference  to  a  nuisance  of  this  charac- 
ter it  is  said  in  a  case  in  Pennsylvania :  "  In  the  country — in  rural 
districts — pig  pens  and  other  unflagrant  things  may  be  maintained 
upon  somewhat  different  terms  and  conditions  than  those  apply- 
ing where  such  practices  are  indulged  in  within  a  borough.    In  the 
rural  districts  pig  pens  have  to  be  maintained,  manure  and  fertil- 
izers must  be  accumulated  in  large  quantities,  and  neighbors  and 
the  traveling  public  are  usually  at  such  a  distance  as  to  escape  sub- 
stantial discomfort.     Moreover,  in  the  country,  hogs  are  not,  gen- 
erally speaking,  fed  on  offal  matter,  nor  constantly  confined  to 
pens.     In  a  borough  there  is  not  the  same  necessity  nor  fitness  for 
the  odorous  conditions  referred  to,  and  owing  to  the  greater  den- 
sity of  population,  greater  care  and  consideration  are  required  to 
avoid  trespassing  on  the  rights  of  others.     One  who  maintains  pig- 
geries or  accumulates  large  quantities  of  offensive  matter  within 
the  limits  of  a  borough,  especially  if  at  a  point  in  or  near  a  built- 
up  portion  of  the  borough,  does  so  at  his  peril, — that  is  to  say,  even 
though  he  may  exercise  every  precaution  to  avoid  the  creation  of 
offensive  odors,  he  is  guilty  of  maintaining  a  public  nuisance,  if  as 
a  consequence  of  his  practices  the  atmosphere  is  polluted  and  the 
public  is  substantially  annoyed."65    And  where  pig  pens  give  forth 
a  stench  which  constitutes  a  nuisance,  it  is  immaterial  that  the 
defendant  kept  the  pens  as  clean  as  they  could  be  kept  under  the 
circumstances.66     Again,  where  a  family  was  seriously  annoyed 
and  disturbed  in  the  occupation  of  a  dwelling  by  the  bleating  of 
calves  which  were  kept  overnight  in  an  enclosure  for  the  purpose 
of  being  slaughtered  in  the  morning,  there  was  held  to  be  a  nuis- 

64.  Commonwealth    v.    Perry,    139  65.  Commonwealth    v.    Armstrong. 

Mass.    198,   29   N.   E.   656;   Common-  24  Pa.   Co.  Ct.  442,  per   Butler,  Jr., 

wealth  v.  Armstrong,  24  Pa.  Co.  Ct.  A.  L.  J. 

R.  442.     See  Smith  v.  McConathy,  11  66.  Burlington     v.     Stockwell,     5 

Mo.  517.  Kan.  App.  569,  47   Pac.  988.     As  to 

A  pigsty  is  a  nuisance  per  se  duty  as  to  care  in  case  of  business  or 

where  maintained  within  a   few  feet  trade,    see   §   89,    herein, 
of  a  dwelling.     Whipple  v.  Mclntyre, 
69  Mo.  App.  397. 

252 


Animals  and  Animal  Enclosures.  §  209 

ance  which  could  be  enjoined.67  And  where  a  yard  used  for  feed- 
ing cattle  constitutes  a  nuisance  and  there  is  no  reason  to  suppose 
that  any  mode  of  use  could  be  adopted  which  would  obviate  the 
trouble,  as  where  it  arises  from  the  wet  and  miry  condition  of  the 
soil,  it  is  proper  to  enjoin  such  use  of  the  lots  absolutely. ^  And 
in  such  an  action  it  is  held  that  it  is  not  competent  for  a  defend- 
ant to  show  that  a  lot  owned  by  the  plaintiff  is*  used  by  him  for  a 
similar  purpose  and  is  in  a  worse  condition  than  the  defendant's.69 

§  209.  Stock  yards  and  cattle  cars. — Stock  yards  are  not  of 
themselves  necessarily  nuisances,  yet  they  may  be  such  under  some 
circumstances  though  well  kept  and  cared  for.  The  fact  that  they 
are  managed  with  ordinary  care  and  kept  about  as  well  as  other 
well  conducted  establishments  of  the  kind  does  not  avail  the  de- 
fendant where  such  yards  are  a  nuisance.70  And  in  a  proceeding 
by  a  party  to  enjoin  the  abatement  of  its  stock  pens  as  a  nuisance, 
it  is  decided  that  evidence  is1  not  admissible  of  the  existence  of 
cattle  pens  in  the  immediate  vicinity  and  that  they  were  kept  in 
such  a  manner  that  stenches  arose  therefrom,  as  one  who  main- 
tains a  nuisance  cannot  justify  his  act  by  the  fact  that  similar  nuis- 
ances are  maintained  by  others  in  the  vicinity  or  that  the  nuis- 
ance was  caused  by  himself  and  others  acting  together  or  inde- 
pendently of  each  other.71  Nor  where  stockyards  are  maintained 
by  a  railroad  company  which  are  a  nuisance  by  reason  of  the  offen- 
sive odors  injurious  to  the  health  of  the  occupants  of 
nearby  dwellings  can  the  company  avoid  liability  for 
damages  to  such  persons  on  the  ground  that  the  main- 
tenance of  the  yards  is  essential  to  the  operation  of  the 
road  and  that  the  odors  complained  of  cannot  be  avoided  where  it 
neither  appears  that  the  odors  are  unavoidable  nor  that  the  yards 

67.  Bishop  v.  Banks,  33  Conn.  118,  &  Kansas  City  R.  R.  Co.,  50  Mo.  App. 
87  Am.  Dec.  197.  But  compare  Bal-  151.  See  Herbert  v.  St.  Paul  City 
lentine  v.  Webb,  84  Mich.  38,  47  N.  Ry.  Co.,  85  Minn.  341,  88  N.  W.  996; 
W.  485.  Anderson  v.  Chicago,  M.  &  St.  P.  Ry. 

68.  Baker  v.   Bohannon,   69  Iowa,  Co.,  85  Minn.  337,  88  N.  W.  1001. 
60,  28  N.  W.  435.  71.  Pittsburg,  C,  C.  &  St.  L.  Ry. 

69.  Baker  v.  Bohannon,  69  Iowa,  Co.  v.  Crothersville,  159  Ind.  330,  64 
60,  28  N.  W.  435.  N.  E.  914. 

70.  Bielman  v.   Chicago,  St.  Paul 

253 


8  210  Animals  and  Animal   Enclosures. 

could  not  have  been  maintained  in  another  locality.72  And  where  a 
nuisance  is  caused  by  a  railroad  company  permitting  its  cattle 
cars,  containing  filth,  producing  offensive  odors,  to  remain  on  a 
>ide  track  near  a  dwelling,  the  company  cannot  avoid  liability  by 
the  fact  that  the  construction  and  operation  of  its  road  was  author- 
ized liv  legislative  grant  unless  it  appear  that  such  a  result  could 
not  be  avoided  by  a  proper  operation  of  the  road.'3  X  or  will  a 
statutory  provision  requiring  railroad  companies  to  furnish  the 
shippers  of  live  stock  with  proper  facilities  to  convey  and  trans- 
port the  same,74  confer  authority  upon  them  to  maintain  stock 
yards  in  an  improper  manner,  so  as  to  constitute  a  nuisance,  to  the 
injury  of  adjacent  property  owners.75  In  an  action,  however,  to 
enjoin  the  maintenance  of  stockyards  by  a  railroad  company  in  a 
certain  locality,  evidence  is  admissible  to  show  that  it  neither 
reasonably    practical  nor  convenient  to  locate  them  elsewhere.'8 

§  210.  Construction  and  maintenance  of  stables  or  cattle  en- 
closures as  affected  by  ordinance. — The  right  to  construct  or  main- 
tain a  stable  or  a  cattle  enclosure  is  to  a  great  extent  in  cities  con- 
trolled or  regulated  by  ordinance,  under  the  powers  conferred  upon 
the  municipality  by  the  legislature.  The  extent  to  which  this  right 
of  control  or  regulation  may  be  exercised  is  dependent  upon  the 
nature  and  extent  of  the  power  granted  in  the  particular  case 
which  may  be  either  express,  having  reference  to  such  enclosures, 
or  under  the  general  power  conferred  to  regulate  and  abate  nuis- 
ances and  to  safeguard  the  public  health.  So  it  has  been 
decided  that  the  city  of  St.  Louis  has  power  to  limit 
livery  stables  to  certain  localities  and  to  provide  for 
their  cleanliness.77  So  where  an  ordinance  provides  that 
the  keeping  of  cattle  within  the  corporate  limits  shall 
constitute    a    nuisance,    it    has    been    decided    that    a    nuisance 

72.  Shively  v.  Cedar  Rapids,  I.  F.       P.  Ry.  Co.,  85  Minn.  337,  88  N.  W. 
&  N.  W.  R.  Co.,  74  Iowa,  169,  37  N.       1001. 

W.  133,  7  Am.  St.  R.  471.  76.  Dolan  v.  Chicago,  M.  &  St.  P. 

73.  Cleveland.   C,.   C.  &   St.   L.  R.  Ry.  Co.,  118  Wis.  362,  95  N.  W.  385. 
Co.  v.  Pattison,  67  111.  App.  351.  77.  St.  Louis  v.  Russell,   116  Mo. 

74.  See    Minn.    Gen.    St.    1894,    §  248,  22  S.  W.  470,  20  L.  R.  A.  721, 
27io.  41  Am.  &  Eng.  Corp.  Cas.  375. 

75.  Anderson  v.  Chicago,  M.  &  St. 

254 


Animals  and  Animal  Enclosures.  §  210 

consisting  of  cattle  yards  and  pens  within  township  limits  where 
cattle  are  enclosed  and  fattened  for  market  and  which  is  so  main- 
tained as  to  necessarily  become  a  nuisance,  may  be  abated.78  And 
where  by  statute  the  erection  of  stables  in  a  city  is  prohibited  with- 
out a  license  from  the  board  of  health,  it  has  been  decided  that 
the  question  whether  a  stable  will  constitute  a  nuisance  is  one  for 
that  board  to  determine  and  that  its  decision  in  granting  a  license 
is  final  and  conclusive,  at  least  until  the  building  is  erected  and 
it  is  shown  that  it  actually  constitutes  a  nuisance.79  It  has,  how- 
ever, been  determined  that  the  power  granted  to  a  city  to  control 
the  location  in  such  cases,  being  a  legislative  one,  cannot  by  ordi- 
nance be  delegated  to  the  owners  of  property  in  a  block  where  the 
erection  of  the  stable  is  proposed.80  And  where  by  statute  the 
power  is  given  in  general  terms  to  the  board  of  health  of  a  town 
to  pass  ordinances  to  regulate  the  drainage  of  stables  and  there  is 
no  language  which  authorizes  the  board  to  prescribe  a  mode  to 
which  stable  owners  must  rigidly  conform,  it  has  been  decided 
that  an  ordinance  is  void  which  restricts  the  owners  of 
stables  to  a  certain  mode  of  laying  the  floor  and  that 
the  owner  is  not  restricted  to  the  mode  prescribed.  In 
such  case,  however,  an  owner  who  follows  this  mode 
is  not  amenable  to  prosecution,  while  if  he  departs  therefrom  and 
creates  a  nuisance,  he  is.81  Again,  while  a  city  may  by  ordinance 
control  and  regulate  nuisances  it  cannot  by  an  unreasonable  ordi- 
nance prohibit  a  certain  thing,  such  as  a  stable,  which  is  not  a 
nuisance  per  se.82  So  an  ordinance  prohibiting  the  location  of  a 
livery  stable  in  any  block  in  which  a  school  building  is  situated,  or 
in  any  block  which  is  opposite  to  a  block  in  which  a  school  build- 

78.  Board  of  Aldermen  of  Opelou-  79.  White    v.    Kenney,    157    Masa. 

sas  v.  Norman,  51   La.  Ann.  736,  25  12,  31  N.  E.  654. 

So.  401.  80.  St.   Louis  v.   Russell,   116  Mo. 

A  board  of  health  may  abate  248,  22  S.  W.  470,  20  L.  R.  A.  721, 

euch    a    nuisance    under    the    general  41  Am.  &  Eng.  Corp.  Cas.  375. 

powers  conferred  upon  it  without  re-  81.  State,    Morford    v.     Board    of 

gard   to  an   ordinance   of  a   town   or  Health  of  Asbury  Park,  61   N.  J.  L. 

city  upon  the  subject.     State,   Rari-  386,  39  Atl.  706. 

tan    Township    Board    of    Health    v.  82.  Phillips  v.  City  of  Denver,  19 

Henzler    (N.  J.  Ch.),  41  Atl.  228.  Colo.  179,  34  Pac.  902,  41  Am.  St.  R. 

230. 

255 


§210  Animals  and  Animal  Enclosures. 

ing  is  situated,  without  reference  to  the  manner  in  which  such 
stable  is  constructed,  kept  or  used,  and  without  specifying  the  dis- 
tance, cannot  be  regarded  as  reasonable,  and  so  cannot  be  upheld 
as  valid  under  a  general  or  incidental  grant  of  authority  to  the 
municipality  assuming  to  pass  it.83  The  court  said  in  this  case: 
"  The  ordinance  in  question  is  not  directed  against  livery  stables 
improperly  kept  or  used,  but  against  all  livery  stables  within  the 
prescribed  limits.  There  is  nothing  to  indicate  that  there  was 
anything  improper  in  the  construction,  keeping,  or  use  of  defend- 
ant's stable.  The  sole  contention  on  the  part  of  the  city,  there- 
fore, is  confined  to  the  single  fact  that  defendant  had  located  and 
conducted  his  stable  within  the  limits  prohibited  by  the  ordinance 
— that  is,  in  a  block  opposite  to  a  block  in  which  a  school  build- 
ing was  situated.  The  ordinance,  however,  does  not  undertake  to 
declare  that  a  livery  stable  conducted  within  the  interdicted  limits 
shall  be  deemed  a  nuisance  per  se;  nor  do  we  intimate  that  such 
an  ordinance  would  have  been  valid  if  passed.  .  .  .  There  is 
no  definite  distance  from  a  school  building  within  which  the  con- 
struction and  carrying  on  of  livery  stables  are  prohibited  by  the 
ordinance.  .  .  .  An  ordinance  so  uncertain,  so  indefinite,  so 
unsuitable  and  unsatisfactory  to  accomplish  the  desired  object,  can- 
not be  regarded  as  reasonable ;  and  so  cannot  be  upheld  under  the 
authority  supposed  to  be  granted  by  the  city  charter."84  Again, 
where  a  municipal  ordinance  provided  that  "  to  erect  hog-pens 
within  any  enclosure  in  the  city  limits,  or  to  permit  hogs  to  run  at 
large  within  any  lot  or  enclosed  place  in  the  city  "  except  at  certain 
designated  places  constituted  a  nuisance  to  be  abated  as  such,  it 
was  decided  that  the  ordinance  was  invalid  by  reason  of  its  broad 
and  sweeping  character.85  And  where  the  thing  prohibited  by  or- 
dinance is  not  a  nuisance  per  se  it  has  been  determined  that  equity 
will  not  lend  its  aid  to  the  enforcement  of  the  provisions  of  such 
ordinance.86 

83.  Phillips  v.  City  of  Denver,  19  86.  Gallagher  v.  Flury,  99  Md. 
Colo.  179,  34  Pac.  902,  41  Am.  St.  181,  57  Atl.  672;  Williamsport  v.  Mc- 
R.  230.  Fadden,   15   Wkly.   Notes  Cas.    (Pa.) 

84.  Per  Mr.  Justice  Elliott.  269.     Compare  Dubos  v.  Dreyfous,  52 

85.  Ex  parte  O'Leary,  65  Miss.  80,  La.  Ann.  1117,  27  So.  663,  holding 
3  So.  144,  7  Am.  St.  Rep.  640.             ,  that   an   injunction    will   be   granted 

256 


Animals  and  Animal  Enclosures. 


211 


§  211.  Damages  recoverable — Cattle  enclosures. — Where  a 
nuisance  consists  of  a  livery  stable  which  is  in  the  nature  of  a  con- 
tinuing or  abateable  nuisance  the  measure  of  damages  is  ordinarily 
the  depreciation  in  the  value  of  the  use  or  the  rental  value  of  the 
properly  affected,87  in  addition  to  which  a  compensation  for  other 
injury  sustained  may  be  allowed  in  a  proper  case.  Thus  it  has 
been  decided  that  the  measure  of  damages  is  the  extent  of  the 
injury  caused  in  the  estimation  of  which,  in  one  case,  it  was  de- 
clared the  jury  should  consider  the  difference  of  rental  value  of  the 
adjoining  property  before  and  after  the  negligent  construction  of 
the  stable  complained  of,  also  whether  sickness  in  plaintiff's  family 
was  caused  by  the  defendant's  negligence,  as  well  as  the  cost  and 
expense  of  moving  from  the  premises  provided  such  moving  was 
compelled  by  defendant's  negligence.88  So  in  the  case  of  nuisance 
arising  from  stock  yards  maintained  by  a  railroad  near  the  dwel- 
ling of  the  plaintiff  it  was  decided  that  though  the  plaintiff's  prop- 
erty was  valueless  while  the  nuisance  existed  he  would  not  be  en- 
titled to  recover  the  full  value  of  his  premises  but  that  rather  the 
depreciation  in  the  rental  value  was  the  proper  measure  of  dam- 
ages.89 Where,  however,  the  defendant  had  expressed  a  purpose 
to  continue  the  nuisance  it  was  declared  by  the  court  in  a  case  in 
Texas  that  it  was  not  prepared  to  deny  that  tnere  could  not  be  a 
recovery  of  a  sum  equal  to  the  depreciation  in  value.90 


to  enforce  a  municipal  ordinance  in 
respect  to  partition  walls,  the  venti- 
lation, and  the  cleanliness  of  a 
stable. 

87.  Stroth  Brewing  Co.  v.  Schmitt, 
25  Ohio  Cir.  Ct.  R.  231. 

88.  Fisher     v.     Sanford,     12     Pa. 
Super.  Ct.  435. 


89.  Shively  v.  Cedar  Rapids,  Iona 
Falls  &  M.  W.  Ry.  Co.,  74  Iowa,  169, 
37  N.  W.  133,  7  Am.  St.  R.  471.  See 
Bielman  v.  Chicago,  St.  Paul  &  K. 
C.  Ry.  Co.,  50  Mo.  App.  151. 

90.  Hockaday  v.  Wortham,  22 
Tex.  Civ.  App.  419,  54  S.  W.  1094. 


257 


CHAPTER  XII. 

Nuisances  Affecting  Highways. 

SECTION  212.  Highways  in  general. 

213.  Public  property,  squares  and  lands. 

214.  Encroachments  and  nuisance  on  highways  in  general. 

215.  Words  "Permanent  Obstruction"  construed. 

216.  Highway  not  completed  or  not  lawfully  established  or  differing 
from  plans. 

217.  Liability  of  individual  creating  nuisance  in  highway. 

218.  Eight  of  individual  to  maintain  action — Special  injury  necessary. 

219.  Same  subject — Continued. 

220.  When  special  injury  exists — Particular  instance?. 

221.  Same  subject — Continued. 

222.  Injury  to  access  or  egress. 

223.  Loading  and  unloading  goods. 

224.  Same  subject— Fact  that  business  lawful  or  use  necessary  may 

be  immaterial. 

225.  Same  subject — Application  of  rules. 

226.  Skids  or  platforms  for  loading  or  unloading  merchandise. 

227.  Exposure  of  wares  for  sale — Storing  goods   in  highway — Show 

cases. 

228.  Market  places. 

229.  Deposit  of  building  materials  and  earth  in  street. 

230.  Excavations — Generally. 

231.  Vaults    and    excavations    under    sidewalks — Coal    holes,    open- 

ings, etc. 

232.  Same  subject — Effect  of  license. 

233.  Building  encroaching  on  highway. 

234.  Building  encroaching  on  highway — Special  injury  to  individual. 

235.  Building  encroaching  on  highway — Bight  to  temporary  and  man- 

datory injunction. 

236.  Structure  obstructing  light  and  air— Right  of  adjoining  owner. 

237.  Overhanging  eaves,  pipe  conductors,  etc. 

238.  Building  liable  to  fall  into  highway. 

239.  Fences  encroaching  on  highway. 

240.  Fences  encroaching  on  highway — Action  by  individual. 

241.  Statutory  penalty  for  encroachments  or  obstructions — Fences. 

242.  Use  of  highway  by  railroad — When  legalized. 

243.  Same  subject — Duty  in  construction  of  railroad. 

244.  Construction  of  New  York  city  subway — Acts  authorizing  use  of 

streets  construed. 

258 


Nuisances  Affecting  Highways.  §  212 

Section  245.  Railroads  in  parks. 

246.  Unauthorized  construction  of  railroad  in  streets. 

247.  Side  tracks  and  switches. 

248.  Cars  standing  at  crossings  or  on  streets. 

249.  Using    street    for    terminal     purposes     of     railroad — Switching 

Cars,  etc. 

250.  Railroad  abutments  and  bridges. 

251.  Accumulations    of    snow   cleared   from   street  railway  tracks — 

Use  of  salt. 

252.  Trees    in    highway    as    a    nuisance — Right    of    municipality    to 

remove. 

253.  Same  subject — Continued. 

254.  Flag  poles. 

255.  Objects  frightening  horses. 

256.  Same   subject — Qualifications   of    rule. 

257.  Toll  gates. 

258.  Other  particular  obstructions,  acts  or  things  as  nuisances. 

259.  Damages  recoverable. 

260.  Power  of  municipality  to  authorize  obstructions  or  nuisances. 

261.  Same  subject — Application  of  rules. 

262.  Municipality  authority  to  declare  things  in  highway  nuisances. 

263.  Same  subject — Continued. 

264.  Municipal  liability. 

§  212.  Highways  in  general. — The  primary  purpose  for  which 
streets  and  highways  are  ordinarily  established  is  that  of  the  free 
passage  and  repassage  of  the  public.1  Where  there  is  no  special 
restriction  when  acquired  or  dedicated,  they  are  for  the  use  of  the 
public  generally  and  not  alone  for  the  people  of  the  town  or  muni- 
cipality in  which  they  are  located.2  And  the  public  has  the  right 
to  travel  upon  any  portion  of  the  highway  which  is  not  being  used 

1.  Gray  v.  Baynard,  5  Del.  Ch.  499;  County,  5  Tex.  Civ.  App.  132,  23  S. 

Augusta  v.  Reynolds    (Ga.   1905),  50  W.    1008;    Jochem   v.     Robinson,     66 

S.  E.  998;  Garibaldi  v.  O'Connor,  210  Wis.  638,  29  X.  W.  642,  57  Am.  Rep. 

111.  284*  287,  71  N.  E.  379,  66  L.  R.  A.  298;   Attorney-General  v.  Brighton  & 

73;    Macomber   v.   Nichols,   34  Mich.  Hove  Co.-op.  Supply  Ass'n,  69  L.  J. 

212,  22  Am.  Rep.  222;  Cohen  v.  New  Ch.  204    (1900),  1  Ch.  276,  81  Law 

York,  113  N.  Y.  532,  21   N.  E.  700,  T.    (N.   S.)    762;    Rex.  v.   Russell.   6 

23  N.  Y.  St.  R.  509,  10  Am.  St.  R.  East  427. 

506,    4    L.    R.    A.    406;    Wendell    v.  2.  Charlotte     v.     Pembroke     Iron 

Mayor    of    Troy,    39    Barb.    (N.    Y.)  Works,  82  Me.  391,  19  Atl.  902,  8  L. 

329;    Wilkesbarre    v.    Burgunder,    7  R.  A.  828. 
Kulp     (Pa.),    63;     Llano     v.     Llano 

259 


§  212  Nuisances  Affecting  Highways. 

for  the  same  purpose  by  some  other  traveler  or  which  is  not  occu- 
pied by  some  legalized  structure.3  While  the  primary  purpose  for 
which  a  highway  is  established  is  that  of  the  passage  of  the  public 
vet  its  use  for  other  purposes  which  are  of  a  public  nature  is  gen- 
erally recognized.  Among  these  are  telegraph,  telephone  and  elec- 
tric light  wires  and  poles  therefor  above  the  surface  of  the  high- 
way, and  gas,  water  and  sewage  pipes  beneath  the  surface.  Though 
some  of  these  uses  could  not  have  been  in  contemplation  when  the 
highways  were  originally  established,  yet  with  the  advance  and 
progress  made  as*  time  passes  certain  uses  have  been  recognized  as 
legitimate  uses  not  inconsistent  with  the  use  of  the  highway.  So  it 
has  been  determined  and  is  a  generally  accepted  principle  that 
when  a  highway  is  dedicated  without  restriction  to  the  public  use 
it  is  always  dedicated  with  regard  to  the  necessities  of  future  times. 
The  following  words  by  Judge  Cooley  are  pertinent  in  this  con- 
nection :  "  The  restrictions  upon  its  use  are  only  such  as  are  calcu- 
lated to  secure  to  the  general  public  the  largest  practical  benefit 
from  the  enjoyment  of  the  easement,  and  the  inconveniences  must 
be  submitted  to  when  they  are  only  such  as  are  incident  to  a  reason- 
able use  under  impartial  regulations.  When  the  highway  is  not 
restricted  in  its  dedication  to  some  particular  mode  of  use,  it  is 
open  to  all  suitable  methods ;  and  it  cannot  be  assumed  that  these 
will  be  the  same  from  age  to  age,  or  that  new  methods  of  making 
the  way  useful  must  be  excluded  merely  because  their  introduc- 
tion may  tend  to  the  inconvenience  or  even  the  injury  of  those 
who  continue  to  use  the  road  after  the  same  manner  as  formerly. 
A  "highway  established  for  the  general  benefit  of  passage  and 
traffic  must  admit  of  new7  methods  of  use  whenever  it  is  found  that 
the  general  benefit  requires  them ;  and  if  the  law  should  preclude 
the  adoption  of  the  use  to  the  new  methods,  it  would  defeat  in 
greater  or  less  degree,  the  purpose  for  which  highways  are  estab- 
lished.' 

3.  First  National  Bank  v.  Tyson,  Use  of  automobile  or  other 
133  Ala.  459,  32  So.  144,  91  Am.  St.  new    means     of     transportation. 

R.  46,  59  L.  R.  A.  399.  The   following     extract    from     the 

4.  Macomber  v.  Nichols,  34  Mich.  opinion  in  a  case  in  Indiana  which 
212,  216,  22  Am.  Rep.  222,  per  was  an  action  to  recover  damages  for 
Cooley,  C.  J.  See  Joyce  on  Electric  personal  injuries  and  for  injuries  to 
Law,  §  317.  the  plaintiff's  horse  and   buggy,   al> 

260 


Nuisances  Affecting  Highways. 


§213 


§  213.  Public  property,  squares  and  lands. — Where  property 
is  dedicated  to  the  public  use  for  certain  purposes  it  cannot  be 
used  in  a  manner  foreign  to  its  dedication  and  any  encroachment 
thereon  or  u&3  thereof  which  is  inconsistent  with  such  purpose 
will  constitute  a  nuisance  which  may  be  enjoined.5     So,  where  a 


leged  to  have  been  the  result  of  de- 
fendant's negligence  in  using  an  auto- 
mobile upon  the  highway,  is  pertinent 
in  this  connection.  "  It  cannot  be 
said,  as  matter  of  law,  that  appel- 
lant was  guilty  of  negligence  for 
using  an  automobile  as  a  means  of 
conveyance  on  the  public  highway. 
The  law  does  not  denounce  motor  car- 
riages, as  such,  on  the  public  ways. 
For,  so  long  as  they  are  constructed 
and  propelled  in  a  manner  consistent 
with  the  use  of  highways,  and  are 
calculated  to  subserve  the  public  as  a 
beneficial  means  of  transportation, 
with  reasonable  safety  to  travelers  by 
ordinary  modes,  they  have  an  equal 
right  with  other  vehicles  in  common 
use,  to  occupy  the  streets  and  roads. 
Because  novel  and  unusual  in  ap- 
pearance, and  for  that  reason  likely 
to  frighten  horses  unaccustomed  to 
see  them,  is  no  reason  for  prohibit- 
ing their  use.  In  all  human  activi- 
ties the  law  keeps  up  with  improve- 
ment and  progress  brought  about  by 
discovery  and  invention,  and,  in  re- 
spect to  highways,  if  the  introduc- 
tion of  a  new  contrivance  for  trans- 
portation purposes,,  conducted  with 
due  care,  is  met  with  inconvenience 
and  even  incidental  injury  to  those 
using  ordinary  modes,  there  can  be 
no  recovery,  provided  the  continuance 
is  compatible  with  the  general  use 
and  safety  of  the  road.  It  is,  there- 
fore, the  adaptation  and  use,  rather 
than  the  form  or  kind  of  conveyance 
that  concerns  the  courts.     It  is  im- 


proper to  say  that  the  driver  of  the 
horse  has  rights  in  the  road  superior 
to  the  driver  of  the  automobile. 
Both  have  the  right  to  use  the  ease- 
ment, and  each  is  equally  restricted 
in  the  exercise  of  his  rights  by  the 
corresponding  rights  of  the  other. 
Each  is  required  to  regulate  his  own 
use  by  the  observance  of  ordinary 
care  and  caution  to  avoid  receiving 
injury  as  well  as  inflicting  injury 
upon  the  other.  And  in  this  the 
quantum  of  care  is  to  be  estimated 
by  the  exigencies  of  the  particular 
situation;  that  is,  by  the  place,  pres- 
ence or  absence  of  other  vehicles  and 
travelers;  whether  the  horse  driven 
is  wild  or  gentle;  whether  the  con- 
veyance and  power  used  are  common 
or  new  to  the  road;  the  known  ten- 
dency of  any  feature  to  frighten  ani- 
mals, etc.  The  restrictions  which  the 
law  imposes  upon  all  modes  of  travel 
and  traffic  on  the  highways  are  such 
as  tend  to  secure  to  the  general  pub- 
lic the  largest  enjoyment  of  the  ease- 
ment, and  must  be  observed  and 
borne  by  all  alike  on  the  broad 
ground  that  all  have  an  equal  right 
to  travel  in  safety;  and  when  acci- 
dents happen  as  incidents  to  reason- 
able use  and  reasonable  care,  the  law 
awards  no  redress."  Indiana  Springs 
Co.  v.  Brown  (Ind.  S.  C,  1905),  74 
X.  E.  615,  616,  per  Hadley,  J. 

5.  Wheeler  v.  Bradford,  54  Conn. 
244,  7  Atl.  22 ;  Llano  v.  Llano  Coun- 
ty. 5  Tex.  Civ.  App.  132,  23  S.  W. 
1008. 


2f>l 


§  213  Nuisances  Affecting  Highways. 

public  square  was  dedicated  by  the  county  to  the  public,  with  a 
right  reserved  in  the  county  to  use  it  for  the  purpose  of  erecting  a 
court  house  thereon,  it  has  been  decided  that  a  jail  and  cesspool 
erected  by  the  county  on  such  square  is  not  in  keeping  with  the 
use  for  which  the  property  was  dedicated  and  constituted  a  public 
nuisance  which  was  abatable.6  And  where  the  enclosure  of  public 
school  lands  obstructed  the  right  of  common,  of  travel,  and  of  the 
removal  of  cattle  to  market,  thus  interfering  with  individual  rights 
in  public  property,  it  was  decided  that  it  constituted  a  public 
nuisance  which  could  be  abated  by  injunction  at  the  suit  of  the 
State,  though  by  statute  such  an  act  was  made  a  penal  offense  for 
which  a  prosecution  and  punishment  was"  provided.7  But  the  en- 
closure of  public  lands  cannot  be  enjoined  at  the  suit  of  an  indi- 
vidual by  reason  of  the  fact  that  he  owns  lands  in  the  vicinity  and 
is  deprived  of  the  right  of  public  pasturage  thereon,  as  such  injury 
is  one  sustained  by  all  alike  whose  live  stock  graze  in  that  vicinity 
or  who  seek  to  enjoy  the  pasturage  afforded  by  such  public  lands.8 
As  was  said  by  the  court  in  this  case :  "  The  injury,  in  other  words, 
would  be  an  injury  to  the  public,  and,  if  a  nuisance  at  all,  a  public 
nuisance  somewhat  like  the  obstruction  of  a  highway  or  the  inter- 
ference with  public  travel  thereon.  And  it  is  an  elementary  prin- 
ciple that  private  persons,  seeking  the  aid  of  equity  to  restrain  a 
public  nuisance,  must  show  some  special  injury  peculiar  to  them- 
selves, aside  from  and  independent  of  the  general  injury  to  the 
public.  .  .  .  Plaintiff's  ownership  of  lands  in  the  vicinity  of 
these  lands  cannot  be  held  to  render  the  injury  to  him  special  or 
different  from  that  suffered  by  the  public  generally,  for  the  reason 
that  such  ownership  confers  upon  him  no  peculiar  right  to  the  en- 
joyment of  the  public  pasturage,  nor  any  greater  right,  if  any, 
than  that  possessed  by  those  who  own  no  land  to  object  to  the  un- 
authorized assertion  of  a  right  to  the  exclusive  possession  of  such 
public  lands.  Xot  only  is  the  plaintiff  without  title  or  interest  in 
the  lands  alleged  to  be  public,  but  he  has  not  sought  to  enter  or 
appropriate  any  of  them,  nor  any  part  thereof,  under  any  of  the 

6.  Llano  v.   Llano  County,   5   Tex.  8.  Anthony   Wilkinson   Live   Stock 
Civ.  App.   132,  23   S.  W.   1008.  Co.    v.    Mcllquam    (Wyo.    1905),    83 

7.  State  v.  Goodnight,  70  Tex.  682,  Pac.  364,  370. 
II    s.  W.   119. 

262 


Nuisances  Affecting  Highways.  §  214 

public  laws.  We  think  it  might  be  difficult,  therefore,  upon  any 
recognized  principle,  for  the  plaintiff  to  establish  a  right  in  him- 
self to  enjoin  the  alleged  acts  of  the  defendant  as'  to  those 
lands.  Treating  the  lands  as  unappropriated  public  lands,  neither 
the  plaintiff  nor  the  defendant  could  maintain  a  suit  to  restrain 
the  other  from  allowing  his  cattle  or  live  stock  to  graze  thereon."9 

§  214.   Encroachments  and  nuisances  on  highways  in  general. 

— A  highway  to  answer  the  purpose  for  which  it  was  created  must 
be  free,  safe,  and  convenient.10  Any  unauthorized  or  unreasonable 
obstruction  therein  which  impedes  the  use  thereof  or  renders  it 
more  difficult  or  increases  the  danger  of  injury  to  persons  or  prop- 
erty, or  generally  interferes  with  the  public  rights,  constitutes  a 
public  nuisance  at  common  law.11  And  an  obstruction  may  never- 
theless be  a  nuisance  though  it  is  not  upon  the  traveled  part  of  the 
highway,12  as  it  is  not  essential,  to  render  an  uncroachment  upon 
a  highway,  a  public  nuisance  that  public  travel  should  be  actually 
obstructed.13  The  fact  that  there  may  be  sufficient  space  for  the 
passage  of  the  public  is  immaterial  in  the  case  of  an  obstruction, 
as  the  public  have  the  right  to  the  unobstructed  use  of  the  whole 
street  as  it  was  wont  to  run  or  as  it  has  been  dedicated  to  its  use.14 
Again,  the  neglect  of  a  statutory  duty  towards  the  public  may 
create  a  nuisance  for  which  the  one  responsible  may  be  indicted  at 

9.  Per  Potter,  C.  J.  v.    Maine    Teleg.    Co.,    46    Me.    483; 

1.0.  Mewark  v.  Delaware,  Lack.  &  Wales  v.  Stetson,  2  Mass.  143;  State 
W.  R.  R.  Co.,  42  N.  J.  Eq.  196,,  7  Atl.  v.  Campbell,.  80  Mo.  App.  110,  2  Mo. 
123.  App.  Rep.  534;   Wilkes-Barre  v.  Bur- 

1.1.  First  National  Bank  v.  Tyson,  gunder,  7  Kulp  (Pa.),  63;  State  v. 
133  Ala.  459,  32  So.  144,  91  Am.  St.  Harden,  11  S.  C.  360;  Dimmett  v. 
R.  46,  59  L.  R.  A.  399;  Costello  v.  Eskridge,  6  Munf.  (Va.)  308. 
State,  108  Ala.  45;  State  v.  Mayor  1,2.  State  v.  Merritt,  35  Conn.  314; 
of  Mobile,  5  Port.  (Ala.)  279,  30  Am.  Dickey  v.  Maine  Teleg.  Co.,  46  Me. 
Dec.  564;   State  v.  Merritt,  35  Conn.  483. 

314;      Augusta     v.     Reynolds      (Ga.  13.  Commonwealth  v.  McNaugher, 

1905),  50  S.  E.  998;   City  of  Colum-  131  Pa.  St.  55,  18  Atl.  934,  28  Am.  & 

bus  v.  Jaques,  30  Ga.  506;   Nelson  v.  Eng.  Corp.  Cas.  186. 

Fehd,    104    111.    App.    114,    67    N.    E.  14.  City  of  Columbus  v.  Jaques,  30 

828,      affirmed     203      111.      120,      67  Ga.  506,  512;    Wilkes-Barre  v.   Bur- 

N.     E.     828;     Corthell     v.     Holmes,  gunder,   7   Kulp    (Pa.),   63. 

88  Me.  376,  380,  34  Atl.  173;  Dickey 

263 


$§  215,  216        Nuisances  Affecting  Highways. 

common  law  and  it  is  not  necessary  that  the  statute  imposing  the 
duty  should  in  express  terms  provide  for  indictment.  Thus,  it 
has  been  so  decided  in  the  case  of  a  bridge  which  a  canal  company 
had  erected  where  the  canal  crossed  the  highway  and  which,  by 
the  neglect  of  the  company  to  keep  in  repair,  had  become  unsafe.15 

§  215.  Words  "  permanent  obstruction  "  construed. — It  is 
sometimes  said  that  in  order  to  render  an  obstruction  or  encroach- 
ment upon  the  highway  a  public  nuisance  it  must  bo  a  "  perma- 
nent "  one.  The  word  permanent  in  this  connection  does  not  em- 
brace the  idea  of  absolute  perpetuity  or  lasting  forever.  The  ordi- 
nary acceptation  of  the  word  is  far  from  being  enforosd  in  declar- 
ing a  nuisance.  It  is  used  in  contradistinction  to  that  class  of 
nuisances  which  are  regarded  as  temporary  and  made  necessary 
by  the  exigencies  of  business  or  the  ordinary  use  of  the  highway. 
It  is  not  necessary  that  a  structure  or  obstruction  should  be 
actually  permanent,  in  the  full  sense  of  the  word,  to  render  it 
a  nuisance.  So  a  structure  sixty-four  feet  long,  twelve  feet  wide, 
and  six  feet  high  erected  upon  the  street  and  extending  a  distance 
equal  to  its  width  from  the  curb  line  into  the  street,  with  a  three- 
foot  railing  upon  the  outside,  and  used  for  the  purpose  of  a  fair  or 
carnival  is  sufficiently  permanent  in  its  nature  to  be  a  nuisance, 
although  not  erected  for  an  indefinite  period.16 

§  216.  Highway  not  completed  or  not  lawfully  established  or 
differing  from  plans. — The  public  has  the  right  in  general  to  go 
upon  any  portion  of  the  highway  and  the  fact  that  an  unauthorized 
obstruction  or  encroachment  is  upon  a  portion  of  the  highway 
which  has  not  been  worked  or  completed,  does  not  operate  to  de- 
prive it  of  its  character  as  a  nuisance.  The  words  of  the  court  in 
a  recent  case  in  Missouri  are  pertinent  in  this  connection.  It  was 
there  said :  "  Any  encroachment  upon  any  part  of  the  highway, 
whether  upon  the  traveled  part  thereof  or  upon  the  side,  comes 
clearly  within  the  idea  of  nuisance.  Every  person  has  a  right 
to  go  over  or  upon  any  part  of  the  highway,  and  the  fact  that  from 
notions  of  economy  or  otherwise,  the  public  authorities  having  the 

15.  State  v.  Morris  Canal  &  Bank-  101  Va.  161,  43  S.  E.  345,  13  Am. 
ing  Co.,  22  N.  J.  L.  537.  Neg.  R.  465. 

16.  City  of   Richmond    v.    Smith, 

264 


Nuisances  Affecting  Highways.  §  216 

the  same  in  charge  have  not  seen  fit  to  work  the  whole  of  it,  does 
not  alter  or  change  the  right.  A  traveler  has  the  right  to  go  any- 
where on  the  right  of  way  outside  of  the  beaten  track  of  the 
highway  if  he  so  chooses,  and  any  obstacle  placed  in  his  way  of 
doing  so  is  an  infringement  and  obstruction  of  a  public  right,  and 
an  annoyance,  and  therefore  a  public  nuisance."  17  So,  where  a 
highway  has  been  established,  any  private  occupation  or  obstruc- 
tion thereof  is  a  nuisance  although  for  want  of  grading  by  the  local 
authorities,  the  street  has  never  been  passable  otherwise  than  on 
foot,  and  although  it  is  not  shown  that  there  is  or  has  been  travel 
thereon,  by  foot  passengers  or  otherwise,  which  has  been  actually 
incommoded.18  But  while  the  municipal  authorities  of  a  city  or 
town  may,  on  complaint  of  a  citizen  cause  an  obstruction  to  be  re- 
moved from  any  public  street  in  actual  use  by  the  public,  yet  where 
a  street  exists  in  the  plan  only  of  such  city  or  town,  and  has  not 
been  actually  opened,  worked  by  the  municipal  authorities  and 
used  by  the  public,  but  on  the  contrary  has  been  in  private  occu- 
pation for  thirty  or  forty  years  it  is  decided  that  this  mode  of  pro- 
cedure is  not  available.19  Again,  where  a  highway  has  been  estab- 
lished and  in  use,  it  is  no  defense  to  a  prosecution  for  obstructing 
it  that  it  was  not  laid  out  in  accordance  with  the  plan  for  its  con- 
struction and  that  the  defendant  honestly  believed  when  he  erected 
smch  obstruction  that  the  highway  was  not  properly  located.20  So, 
though  it  might  be  conceded  that  the  order  of  commissioner  laying 
out  a  highway  was  void  for  the  reason  that  a  third  commissioner 
was  not  notified  of  the  meeting  of  the  commissioners  to  make  the 
same,  yet  it  has  been  declared  that,  where  there  is  a,  highway  by 
user  and  adoption  by  the  commissioners  and  worked  by  them  as 
such,  to  the  extent  of  the  use  indicated  by  the  location  of  a  fence, 
as  same  was  proved  to  have  existed  for  twenty  years  and  as  to 
which  a  wire  fence  complained  of  was  an  encroachment, 
the  question  whether  such  encroachment  was  a  nuisance 
from     which      plaintiff's     horse     was     injured     was     properly 

17.  Per  Smith,  P.  J.,  in   State  v.  19.  Bryans  v.  Almand,  87  Ga.  564, 
Campbell,    80   Mo.    App.    110,   2   Mo.       13  S.  E.  554. 

App.  Repr.  534.  20.  Commonwealth  v.  Dicken,   145 

18.  Commonwealth  v.  McNaugher,      Pa.  St.  453;  22  Atl.  1043.    See  Peter- 
131  Pa.  St.  55,  18  Atl.  934.  sen  v.  Beha,   161  Mo.  513,  62  S.  W„ 

462. 

265 


8  217  Nuisances  Affecting  Highways. 

one  for  the  jury.21  And  it  is  no  defense  for  obstructing  a  street, 
that  it  was  not  lawfully  established  where  the  defendant  was  a 
party  to  proceedings  in  which  judgment  was  rendered  by  a  court 
of  competent  jurisdiction  holding  it'  to  be  lawfully  established  and 
from  which  judgment  the  defendant  has  in  no  way  excepted  or 
appealed.22  So,  one  through  whose  land  a  highway  has  been  estab- 
lished and  ordered  to  be  opened,  cannot,  after  he  has  presented 
his  claim  for  damages  to  the  proper  authorities  and  the  same  is 
allowed  and  no  appeal  taken  by  him,  lawfully  obstruct  such  high- 
way though  the  notice  to  the  land  owner  to  open  the  road  is  irregu- 
lar or  defectice  where  the  proper  officials,  after  giving  such  notice, 
actually  proceed  to  open  it.23  And  where  a  public  road  has  been 
constructed  through  a  person's  land,  the  fact  that  no  compensation 
therefor  has  been  made  to  him  will  not  justify  him  in  creating  a 
nuisance  by  obstructing  the  same  or  in  any  way  affect  the  right  of 
one  specially  injured  by  such  obstruction  to  an  injunction.24  Nor 
will  one  prosecuted  for  obstructing  a  public  road  or  highway  be 
entitled  to  justify  his  act  by  the  fact  that  it  is  less  than  the  statu- 
tory width  prescribed  in  such  cases.25 

§  217.  Liability  of  individual  creating  nuisance  in  highway. 
— One  who  does  or  authorizes  the  doing  of  an  unlawful  act  upon 
the  highway  by  which  it  is  obstructed  or  the  free  use  thereof  inter- 
fered with,  or  impeded,  or  rendered  dangerous  or  which  interferes 
in  any  way  with  the  rights  of  the  public  to  use  it  for  the  purposes 
of  travel  creates  a  nuisance  for  which  he  is  liable.26    And  one  who 

21.  Anderson  v.  Young,  66  Hun  828;  Portland  v.  Richardson,  54  Me. 
(N.  Y.),  240,  21  N.  Y.  Supp.  172,  49  46,  89  Am.  Dec.  720;  Brown  v.  Wat- 
N.  Y.  St.  R.  480.  son,   47    Me.    161,   74  Am.   Dec.   482; 

22.  Foster  v.  Manchester,  89  Va.  Matthews  v.  Missouri  Pacific  Ry.  Co., 
92,  15  S.  E.  497.  26   Mo.   App.   75;    Driscoll   v.   Carlin, 

23.  Kansas  v.  Hedeen,  47  Kan.  50  N.  J.  L.  28,  11  Atl.  482;  Tinker 
402,  28   Pac.   203.  v.  Railway  Co.,  157  N.  Y.  318,  51  N. 

24.  Diaper  v.  Mackey,  35  Ark.  E.  1032;  Congreve  v.  Smith,  18  N.  Y. 
497 ;  Chapman  v.  Gates,  54  N.  Y.  132.  82 ;    Wendell   v.   Mayor   of   Troy,    39 

25.  State  v.  Robinson,  28  Iowa,  Barb.  (N.  Y.)  329,  337;  McDermott 
514.  v.    Conley,    11    N.    Y.   Supp.   403,    58 

26.  Nelson  v.  Fehd,   104  111.  App.  Hun.  602m. 
114,  affirmed  203  111.   120,  67  N.  E. 

266 


Nuisances  Affecting  Highways. 


218 


has  created  a  nuisance  in  the  highway  cannot  shelter 
himself  behind  the  claim  that  some  one  else  is  under 
a  legal  liability  to  remove  it.  Thus  it  was  so  decided 
where  a  tramway  company  created  a  nuisance  by  remov- 
ing the  snow  from  its  tracks  by  a  heavy  plough  and  heaping  the 
same  up  at  the  sides  of  the  streets  and  then  spreading  salt  on  its* 
tracks,  which  caused  the  snow  thereon  to  melt  and  the  mixture 
run  by  gravitation  from  the  track  to  the  heaps  of  snow  at  the  side 
of  the  street  injuring  horses  and  impeding  traffic.27  Again  a  de- 
fendant who  in  violation  of  an  express  statutory  duty,  places  or 
causes  an  obstruction  in  a  public  highway,  will  not  be  heard  to  say 
that  he  did  not  anticipate  an  injury,  which  was  the  direct  result 
of  his  unlawful  act,  when  the  person  injured  was  without  fault.28 


§  218.  Right  of  individual  to  maintain  action — Special  injury 
necessary. — In  case  of  a  public  nuisance  affecting  the  highway, 
the  right  of  an  individual  to  obtain  an  injunction  is  not  recognized 
unless  he  has  suffered  some  private  and  material  damage  or  injury 
differing  in  kind  from  that  suffered  by  the  public  at  large.29     The 


27.  Ogston  v.  Aberdeen  District 
Tramways  Co.  (1897),  A.  C.  Ill,  66 
L.  J.  P.  C.  N.  S.  1. 

28.  Evansville  &  Terre  Haute  E. 
R.  Co.  v.  Carvener,  113  Ind.  51,  14 
N.  E.  738. 

29.  Irwin  v.  Dixon,  9  How.  (U. 
S.)  10,  27;  Baker  v.  Selma  Street  & 
S.  R.  Co.,  135  Ala.  552,  33  So.  685; 
Ward  v.  City  of  Little  Rock,  41  Ark. 
526,  48  Am.  Rep.  46;  Hogan  v.  Cen- 
tral Pacific  R.  Co.,  71  Cal.  83,  11  Pac. 
876;  Wheeler  v.  Bedford,  54  Conn. 
244,  248,  7  Atl.  22;  Clark  v.  Say- 
brook,  21  Conn.  313;  East  Tennessee 
v.  G.  R.  Co.  v.  Boardman,  96  Ga.  356, 
23  S.  E.  403;  Stufflebeam  v.  Mont- 
gomery, 3  Idaho,  20,  26  Pac.  125; 
Aurora  Electric  L.  &  P.  Co.  v.  Mc- 
Wethy,  104  111.  App.  479  affirmed,  202 
111.  218,  67  N.  E.  9;  Guttery  v.  Glenn, 
201   111.  275,  66  N.  E.  305;    Chicago 


v.  Union  Building  Assoc,  102  111. 
379,  40  Am.  Rep.  598;  McDonald  v. 
English,  85  111.  232;  O'Brien  v.  Cen- 
tral Iron  &  Steel  Co.,  158  Ind.  218, 
63  N.  E.  302,  92  Am.  St.  R.  305; 
Dantzer  v.  Indianapolis  Union  Ry. 
Co.,  141  Ind.  604,  39  N.  E.  223,  50 
Am.  St.  R.  343,  34  L.  R.  A.  7G9; 
Strunk  v.  Pritchett,  27  Ind.  App. 
582,  61  N.  E.  973;  Irwin  v.  Great 
Southern  Teleph.  Co.,  37  La.  Am.  63, 
1  Am.  Elec.  Cas.  709;  Brown  v.  Wat- 
son, 47  Me.  161,  74  Am.  Dec.  482; 
Bernbe  v.  Anne  Arundel  Co.,  94  Md. 
321,  51  Atl.  179,  57  L.  R.  A.  279; 
Houck  v.  Wachter,  34  Md.  265,  6  Am. 
Rep.  332;  Robinson  v.  Brown,  182 
Mass.  266,  65  N.  E.  377;  Stetson  v. 
Faxon,  19  Pick.  (Mass.)  147,  31  Am. 
Dec.  123;  Guilford  v.  Minneapolis  & 
St.  P.  R.  R.  Co.  (Minn.  1905),  102 
N.  W.  365;  Aldrich  v.  Wetmore,  52 


267 


218 


Nuisances  Affecting  Highways. 


gist  of  the  action  in  this  class  of  cases  is  the  private  injury  and 
the  plaintiff  must  allege  and  prove  some  special  damage  different 
in  kind  from  that  suffered  in  common  with  the  public.30  When 
this  is  shown  he  will  be  entitled  to  an  injunction  restraining  such 
nuisance,31  and  may  recover  damages  from  the  one  causing  the 


Minn.  164,  53  N.  W.  1072;  Dawson 
v.  St.  Paul  Fire  Ins.  Co.,  15  Minn. 
136,  2  Am.  Rep.  109;  Baker  v.  Mc- 
Daniel,  178  Mo.  447,  77  S.  W.  531; 
George  v.  Peckham  (Neb.,  1905),  103 
N.  W.  664;  Adams  v.  Popham,  76 
N.  Y.  410;  Moudle  v.  Toledo  Plow 
Co.,  6  Ohio  N.  P.  294;  Knowles  v. 
Pennsylvania  R.  R.  Co.,  175  Pa.  St. 
623,  34  Atl.  974,  52  Am.  St.  R.  860; 
Parsons  v.  Hunt  (Tex.  Civ.  A.,  1904), 
81  S.  W.  120;  Baxter  v.  Winoski 
Turnpike  Co.,  22  Vt.  114,  52  Am. 
Dec.  84;  Wilson  v.  West  &  Slade 
Mill  Co.,  28  Wash.  312,  68  Pac.  716; 
Keystone  Bridge  Co.  v.  Summers,  13 
W.  Va.  476,  485;  Zettel  v.  West 
Bend,  79  Wis.  316,  48  N.  W.  379,  24 
Am.  St.  R.  715;  Carpenter  v.  Mann, 
17  Wis.  155. 

"  It  is  familiar  law  that  the  pro- 
cess of  injunction  cannot  be  availed 
of  by  a  private  citizen  to  abate  a 
purely  public  nuisance,  from  which 
he  suffers  no  special  or  peculiar  in- 
jury of  a  continuing  nature,  for 
which  an  action  at  law  will  afford 
him  no  adequate  remedy  or  redress, 
and  that  for  a  single  injury  capable 
of  estimation  in  damages,  although 
inflicted  in  the  perpetration  of  a  pub- 
lic wrong,  compensation  must  be 
sought  in  a  court  of  law.  .  . 
It  is  not  enough  to  confer  jurisdic- 
tion upon  equity  that  the  plaintiff 
has  suffered  damages  special  or  pecu- 
liar to  himself,  and  in  which  the 
public  do  not  share,  but  such  dam- 
ages must  be  of  such  a  character  as  . 


to  be  incapable  of  being  measured 
and  compensated  in  damages.  The 
law  is  equally  well  established  that 
if  the  damages  suffered  by  an  indi- 
vidual are  of  the  same  nature  as 
those  inflicted  upon  the  public  at 
large,  they  are  not  rendered  special 
and  peculiar,  within  the  meaning  of 
the  above  mentioned  rule,  by  the  fact 
that  they  exceed  the  latter  in  degree. 
In  order  to  be  included  within  the 
rule  they  must  differ  from  the  latter 
in  kind."  George  v.  Peckham  (Neb., 
1905),  103  N.  W.  664,  666,  per  Ames. 
C. 

The  erection  of  a  platform 
scale  in  a  street  of  a  city  cannot  be 
enjoined  in  a  proceeding  by  an  indi- 
vidual unless  he  shows  some  special 
injury.  Grant  v.  Defenbaugh,  91  111. 
App.  618. 

30.  Smith  v.  McDonald,  148  111. 
51,  35  N.  E.  141,  22  L.  R.  A.  393. 
See  Baker  v.  Selma  Street  &  S.  R. 
Co.,  135  Ala.  552,  33  So.  685. 

The  complaint  must  show  by 
proper  averment  that  the  plaintiff 
will  suffer  some  injury  from  the  nui- 
sance which  is  in  its  nature  special 
and  peculiar  to  him  and  different  in 
kind  from  that  to  which  the  public  is 
subjected.  Harniss  v.  Bulfitt  (Cal., 
1905),  81  Pac.  1022,  decided  under 
Cal.  Civ.  Code,  §  3493. 

31.  First  National  Bank  v.  Tyson, 
133  Ala.  459,  32  So.  144,  91  Am.  St. 
R.  96,  59  L.  R.  A.  399;  Howard  v. 
Hartford  St.  Ry.  Co.,  76  Conn.    174, 

_56  Atl.   506;     McDonald  v.   English, 


268 


Nuisances  Affecting  Highways. 


219 


same.32  As  is  said  in  a  West  Virginia  case:  "If  the  right  of  the  pub- 
lic to  the  use  of  a.  highway  is  clear,  and  a  special  injury  is  threat- 
ened by  an  obstruction  of  the  highway,  and  this  special  injury  is 
serious,  reaching  the  very  substance  and  value  of  the  plaintiff's 
estate,  and  is  permanent  in  its'  character,  a  court  of  equity  by  an 
injunction  ought  to  present  such  a  nuisance."  s3 

§  219.  Same  subject — Continued. — To  constitute  special  dam- 
age there  must  be  an  invasion  or  violation  of  some  private  right  of 
the  individual,  as  distinguished  from  the  public  right  which  a 
party  has  of  using  a  public  highway  in  common  with  the  rest  of 
the  public.34  It  is  not,  however,  essential  to  the  right  of  an  individ- 
ual to  maintain  an  action  that  the  special  injury  sustained  by  him 
be  direct,  a  consequential  injury  being  sufficient.35  And  it  has  been 
declared  that  the  extent  of  the  injury  which  an  individual  must 
sustain  to  entitle  him  to  maintain  such  an  action  is  not  generally 
considered  very  important,  it  being  said  though  that  a  substantial 


85  111.  232;  Strunk  v.  Pritchett,  27 
Ind.  App.  582,  61  N.  E.  973;  Venard 
v.  Cross,  8  Kan.  248 ;  Aldrich  v.  Wet- 
more,  52  Minn.  164,  53  N.  W.  1072; 
Canton  Cotton  Warehouse  Co.  v. 
Potts,  69  Miss.  31,  10  So.  448;  Smith 
v.  Putnam,  62  N.  H.  369;  Wakeman 
v.  Wilbur,  147  N.  Y.  657,  42  N.  E. 
341. 

32.  Staples  v.  Dickson,  88  Me. 
362,  34  Atl.  168;  Viebahn  v.  Crow 
Wing  County  Comm'rs  (Minn., 
1905),  104  N.  W.  1089;  Smith  v. 
Putnam,  62  N.  H.  369.  See  sections 
following,  herein. 

A  tenant  of  city  premises, 
although  he  has  no  estate  in  the  land, 
is  the  owner  of  its  use  for  the  term 
of  his  lease  and  can  recover  damages 
for  any  injury  to  such  use,  caused  by 
the  erection  and  maintenance  of  a 
public  nuisance  in  the  street  ad- 
jacent to  the  premises.  Bentley  v. 
Atlanta,  92  Ga.  623,  18  S.  E.  1013. 


A  town  which  sustains  a  spe- 
cial damage  by  a  public  nuisance 
affecting  a  highway  which  it  is  obli- 
gated to  maintain  may  recover  dam- 
ages from  the  one  who  maintains  the 
same.  Charlotte  v.  Pembroke  Iron 
Works,  82  Me.  391,  19  Atl.  902,  8 
L.  R.  A.  828. 

A  demand  to  abate  a  nuisance 
upon  the  highway  is  not  necessary 
to  enable  a  person  injured  thereby  to 
maintain  an  action  for  damages. 
Coats  v.  Atchison,  T.  &  S.  F.  Ry. 
Co.    (Cal.,    1905),   82   Pac.    640. 

33.  Keystone  Bridge  Company  v. 
Summers,  13  W.  Va.  476,  485,  per 
Green,  President.  See  Mohawk 
Bridge  Company  v.  Utica  &  bchenec- 
tady  R.  R.  Co.,  6  Paige  Ch.  (N.  Y.) 
555. 

34.  Aldrich  v.  Wetmore,  52  Minn. 
164,  53  N.  W.  1072. 

35.  Baxter  v.  Winooski  Turnpike 
Co.,  22  Vt.  114,  52  Am.  Dec.  84. 


269 


§219  Nuisances  Affecting  Highways. 

and  not  merely  a  nominal  injury  must  be  inflicted.36  And  though  in 
an  action  by  an  individual  to  abate  a  public  nuisance  consisting  of 
an  obstruction  in  a  highway,  there  is  no  positive  averment  in  the 
complaint  of  any  special  injury  to  the  plaintiff  differing  from  that 
sustained  in  common  with  the  public,  yet.  it  has  been  decided  that 
where  the  essential  fact  appears  by  plain  and  necessary  implica- 
tion, and  there  is  no  special  demurrer  raising  any  objection  to  the 
pleading,  the  pleading  will  be  upheld  upon  a  motion  for  judgment 
on  the  pleading  which  is  made  at  the  beginning  of  the  trial.37  In 
Louisiana  a  distinction  is  made  in  those  cases  where  the  soil  of  a 
public  road  belongs  to  the  owner  of  the  land  on  which  it  is  made. 
In  such  a  case  it  has  been  decided  that  where  a  nuisance  exists 
upon  the  road  in  front  of  a  person's  premises  which  only  affects 
him  in  the  same  manner  as  the  rest  of  the  public,  yet  he  is  entitled 
to  his  remedy  therefor  as  he  is  merely  protecting  his  own  private 
interests  which  he  has  by  reason  of  the  ownership  of  the  soil,  and 
that  these  differ  from  the  interests  of  the  public  at  large.38  And  it 
has  been  decided  that  mandamus  proceedings  may  be  brought  by  a 
private  citizen  to  compel  the  proper  authorities  to  remove  an  ob- 
struction in  a  city  street,  which  constitutes  a  nuisance,  without 
showing  any  special  interest  or  injury  on  the  part  of  such  citizen.39 
So  where  a  railroad  company  has  illegally  encroached  upon  the 
highway  so  as  to  create  a  public  nuisance  mandamus  may  be  main- 
tained by  a  private  individual  to  compel  the  restoration  of  the 
highway  to  "  its  former  state  or  to  such  state  as  not  to  have  its 
usefulness  impaired."  40 

36.  Wakeman    v.    Wilbur,    147    N.  482,    22     N.    E.    596,    distinguishing 
Y.  657,  42  N.  E.  341.  Yorktown  v.  People,  66  111.  339;  Pat- 

37.  Hargro    v.    Hodgdon,    89    Cal.  terson  v.  Vail,  43  Iowa,   142;   People 
623,  26  Pac.  1106.  v.    Mayor    of    New    York,    59    How. 

38.  Bradley  v.  Pharr,  45  La.  Ann.  Prac.  (N.  Y.)  277. 

426,  12  So.  618,  19  L.  R.  A.  647,  so  That    mandamus    will    not    lie 

holding  in  the  case   of  the  construe-  where  there  is  a  remedy  by  in- 

tion  of  a  private  railway  on  a  public  dictment,    see    White     v.     Highway 

road.  Comm'rs,    95    Mich.    288,    54    N.    W. 

39.  People  v.  Keating   168  N.   Y.  875. 

390,   61   N.   E.    637.     See,   also,    Bro-  40.  People    v.     Northern     Central 

kaw  v.    Highway  Comm'rs,    130    111.      Ky.  Co.,  164  N.  Y.  289,  58  N.  E.  138. 


270 


Nuisances  Affecting  Highways.  §  220 

§   220.   When   special   injury   exists— Particular  instances. — 
An  owner  of  land  who  erects  in  front  of  his  building  columns 
which  encroach  upon  the  sidewalk,  creates  a  public  nuisance  to  en- 
join which  a  bill  in  equity  may  be  maintained  and  an  owner  of 
adjacent  property  who  is  thereby  injured  in  his  easement  of  view 
or  prospect  sustains  an  injury  different  in  degree  and  character 
from  that  sustained  by  the  general  public  and  may  maintain  a  bill 
in  equity  to  enjoin  such  nuisance.41     And  where  by  the  standing 
of  horses  and  wagons  in  front  of  the  adjoining  premises  both  upon 
the  sidewalk  and  the  street  so  that  persons  must  turn  out  into  the 
street  to  get  around  such  obstruction,  it  was  declared  that  it  might 
well  be  inferred  that  custom  might  be  diverted  from  the  plaintiff's 
place  of  business  by  the  inconvenience  of  his  customers  in  having 
to  pass  such  obstructions  so  as  to  constitute  such  a  special  injury 
as  to  give  him  a  standing  in  court  for  redress.42  So  where  a  book- 
seller having  a  shop  by  the  side  of  a  public  thoroughfare  suffered 
loss  in  his  business  in  consequence  of  travelers  having  been  di- 
verted  from    the   thoroughfare    by    an    unauthorized   obstruction 
across  it  for  an  unreasonable  time,  it  was  decided  that  this  was  a 
damage  sufficiently  of  a  private  nature  to  form  the  subject  of  an 
action.43     So  if  persons,  though  under  the  authority  of  a  charter, 
build  a  bridge  over  a  canal  constructed  by  them  at  the  point  where 
it  intersects  the  highway  and  the  bridge  was  either  originally  rot- 
ten and  unsafe  or  becomes  so  subsequently,  it  is  a  public  nuisance 
in  the  highway  and  one  who  sustains  a  special  injury  as  a  result 
thereof  will  be  entitled  to  recover  damages.44     And  where  a  public 
road  leading  to  a  ferry  maintained  by  the  plaintiff  was  obstructed, 
it  was  decided  that  there  was  such  a  special  injury  to  him  as  would 
entitle  him  to  an  injunction  against  its  continuance.40     So  it  has 
been  decided  that  the  right  given  by  statute  to  flow  lands  by  pro- 
ceedings under  a  mill  dam  act,  confers  no  authority  to  create  a 

41.  First  National  Bank  v.  Tyson,  44.  Pennsylvania  &  Ohio  Canal 
133  Ala.  459,  32  So.  144,  91  Am.  St.  Co.  v.  Graham,  63  Pa.  St.  290,  296,  3 
R.  46,  59  L.  R.  A.  399.  Am.    Rep.    549.     See    Manley    v.    St. 

42.  Flynn  v.  Taylor,  53  Hun  (N.  Helen's  Canal  &  Ry.  Co.,  2  Hurls.  & 
Y.),  167,  26  N.  Y.  St.  R.  649,  6  N.  Norm.  840.  As  to  railroad  bridges. 
Y.  Supp.  96.  see  §   250,   herein. 

43.  Wilkes  v.  Hungerford  Mar-  45.  Draper  v.  Mackey,  35  Ark. 
ket,  2  Bing.  N.  C.  281.  497. 

271 


§  221  Nuisances  Affecting  Highways. 

public  nuisance  by  overflowing  or  obstructing  the  highway  and 
that  one  who  is  deprived  of  his  right  of  access  to  and  egress  from 
his  property  thereby,  sustains  a  special  injury  entitling  him  to 
maintain  an  action  therefor.46  And  where  there  has  been  a  mater- 
ial deterioration  in  value  of  a  person's  property  different  in  extent 
and  manner  from  that  which  is  sustained  by  the  public  at  large, 
an   action   may   be  maintained  by   such    person    to    abate    the 


§  221.  Same  subject — Continued. — Where  a  person  who  had 
been  using  a  certain  road  for  the  purpose  of  drawing  logs  over  it 
was,  by  reason  of  an  obstruction  in  the  form  of  a  fence  therein, 
compelled  for  several  days  to  take  another  and  much  longer  route 
to  his  pecuniary  damage,  and  it  also  appeared  that  he  was  obliged 
at  other  times  to  clear  the  road  from  drifts  of  snow  and  that  in 
some  other  respects  he  was  put  to  expense  in  the  use  of  the  road, 
it  was  decided  that  he  sustained  such  a  peculiar  and  private  injury 
as  would  entitle  him  to  maintain  an  action  to  abate  the  nuisance.48 
As  a  general  rule,  however,  the  mere  fact  that  a  person  is  obliged 
by  reason  of  a  nuisance  in  the  highway  to  travel  by  a  longer  or 
more  circuitous  route,  doss  not  show  any  special  injury  which  will 
enable  him  to  maintain  such  an  action  himself.49  Nor  is  an  injury 
such  as  is  essential  established  by  the  fact  that  a  person  is  more 
frequently  inconvenienced  than  others  as  proof  of  this  fact  shows, 
not  an  injury  different  in  kind,  but  one  merely  different  in  ex- 
tent.50 And  where,  in  an  action  by  an  individual  to  abate  a  nuisance 

46.  Venard  v.  Cross,  8  Kan.  172.  Dec.  482,  holding  where  one  return- 

47.  Whaley  v.  Wilson,  112  Ala.  ing  home  with  a  loaded  team  was 
627.  stopped  by  obstructions  placed  in  the 

48.  Wakeman  v.  Wilbur,  147  N.  highway  and  compelled  to  take  a 
Y.  657,  42  N.  E.  341,  71  N.  Y.  St.  R.  more  circuitous  route,  that  he  was 
266.  Compare  George  v.  Peckham  entitled  to  recover  damages  from  the 
(Neb.,  1905),  103  N.  W.  664.  person    who    placed    the    obstruction 

49.  Guttery  v.  Glenn,  201  111.  275,  there. 

66  N.  E.  305;  Houck  v.  Wachter,  34  50.  San  Jose  Ranch  Co.  v.  Brooks, 

Md.  265,   6  Am.   Rep.  332;   Zettel  v.  74  Cal.  463,   16  Pac.  250;  Gilbert  v. 

West  Bend,  79   Wis.  316,  48  N.   W.  Greeley  S.  L.  &  P.  R.  Co.,   13  Colo. 

379,  24  Am.   St.   R.    715.       But   see  501,  22  Pac.  814,  40  Am.  &  Eng.  R. 

Brown  v.  Watson,  47  Me.  161,  74  Am.  Cas.  800. 

272 


Nuisances  Affecting  Highways.  §  222 

consisting  of  an  obstruction  in  the  highway,  it  was  alleged  that,  by 
reason  of  the  obstruction,  visitors  to  the  town  were  unable  to  read- 
ily and  easily  see  and  determine  the  location  of  the  hotel  and  res- 
taurant of  the  plaintiff  and  became  the  guests  of  other  hotels  and 
restaurants,  and  that  in  consequence  thereof  the  plaintiff  had  suf- 
fered damage,  it  was  decided  that  such  allegations  did  not  show  an 
injury  different  in  kind  and  character  from  that  suffered  by  the 
public  or  other  business  men  in  the  vicinity.51  Again,  it  has  been 
decided  that  a  railroad  company  does  not  sustain  such  a  special 
injury  on  account  of  annoyance  to  its  passengers  from  a  nuisance 
caused  by  the  assembling  in  the  street  near  the  depot  of  express- 
men and  hotel  runners  who,  by  reason  of  the  manner  in  which  they 
conduct  their  business,  are  a  nuisance  both  to  the  passengers  and 
the  public,  as  will  entitle  it  to  maintain  a  bill  to  enjoin  such  nuis- 


§  222.  Injury  to  access  or  egress. — One  who  owns  property 
abutting  on  a  street  has  not  only  the  right  in  common  with  the  pub- 
lic of  using  the  street  from  end  to  end  for  the  purpose  of  passage, 
but  also  has  the  individual  right  of  free  and  convenient  egress  from 
and  ingress  to  his  property  which  is  a  private  and  personal  right 
unshared  by  the  community,  and  if  taken  away  or  materially  im- 
paired by  an  unauthorized  obstruction  of  the  highway  such  owner 
sustains  a  special  injury  different  in  character  from  that  sustained 
by  the  public,  which  will  entitle  him  to  maintain  an  action  to 
enjoin  the  continuance  of  the  same.53    It  is  not  necessary  that  all 

51.  Stufflebeam  v.  Montgomery,  v.  Weichselbaum,  9  Kan.  App.  360, 
3  Idaho,  20,  26  Pac.  125.  58  Pac.  126;  Sutherland  v.  Jackson, 

52.  Pittsburgh,  Ft.  W.  &  C.  R.  Co.  32  Me.  80;  Aldrich  v.  Wetmore,  52 
v.  Cheevers,  44  111.  App.  118.  Minn.    164,    53    N.    W.    1072;  Brok- 

53.  Goggans  v.  Myrick,  131  Ala.  kan  v.  Minneapolis  &  St.  L.  R.  Co., 
286,  31  So.  22;  Hargro*  v.  Hodgdon,  29  Minn.  41,  11  N.  W.  124;  Wallace 
89  Cal.  623,  26  Pac.  1106;  Hubbard  v.  Kansas  City  &  Southern  R.  Co.,  47 
v.  Deming,  21  Conn.  356;  O'Brien  v.  "Mo.  App.  491;  Kalteyer  v.  Sullivan, 
Central  Iron  &  Steel  Co.,  158  Ind.  18  Tex.  Civ.  App.  488,  46  S.  W.  288. 
218,  63  N.  E.  302,  92  Am.  St.  R.  305;  A  railroad  company  may  main- 
Dantzer  v.  Indianapolis  Union  Ry.  tain  a  bill  in  equity  to  enjoin  the 
Co.,  141  Ind.  604,  39  N.  E.  223,  34  continuance  of  a  nuisance  consisting 
L.  R.  A.  769,  50  Am.  St.  R.  343;  of  an  obstruction  in  the  highway  by 
Venard  v.  Cross,  8  Kans.  172;  Dyche  which  access  to  its  property  is  ma- 

273 


§  223  Nuisances  Affecting  Highways. 

access  be  cut  off  to  entitle  him  to  this  remedy.34  Nor  need  the 
obstruction  be  continuous  and  uninterrupted,  it  being  sufficient 
if  it  is  only  occasional  and  continued  for  a  few  hours  at  a  time.5a 
And  the  fact  that  other  abutters  may  sustain  a  similar  injury  does 
not  render  their  injury  one  in  common  with  the  public  or  de- 
prive an  abutting  owner  of  his  right  to  maintain  an  action  for 
damages  against  the  one  creating  the  nuisance.66  And  though  the 
municipality,  and  not  the  abutter,  owns  the  fee  to  the  street,  he 
may,  nevertheless,  avail  himself  of  such  a  remedy.57  In  the  appli- 
cation of  the  rule  as  to  such  a  remedy  in  case  of  an  injury  to  access 
and  egress  it  has  been  decided  that  the  construction  of  a  round 
house  and  machine  and  repair  shops  at  the  end  of  an  alley,  which 
was  so  narrow  that  it  did  not  permit  of  the  turning  in  it  of  a 
vehicle  drawn  by  a  beast  of  burden  by  which  all  access  to  a  per- 
son's property  from  the  rear  was  cut  off  from  one  street,  created 
a  public  nuisance  and  that  the  owner  of  the  property  thereby  sus- 
tained such  a  special  injury  as  would  entitle  him  to  maintain  an 
action.58 

§  223.  Loading  and  unloading  goods. — Among  the  few  limi- 
tations upon  the  right  of  the  public  to  the  free  and  unobstructed 
use  of  the  highway  is  that  of  the  right  of  the  owner  or  occupant 
of  premises  which  abut  thereon  to  make  a  reasonable  use  of  the 
highway  in  front  of  his  premises  for  the  purpose  of  loading  or 
unloading  goods  or  merchandise  used  in  connection  with  a  busi- 
ness conducted  by  him.     The  use  in  such  cases  must  be  a  reason- 

terially    impaired.      Pennsylvania    S.  Steel  Co.,  158  Ind.  218,  63  N.  E.  302, 

V.    R.    Co.    v.    Reading    Paper   Mills  92  Am.  St.  R.  305. 

Co.,  149  Pa.  St.  18,  24  Atl.  205.    As  57.  Alabama    &   V.    G.    R.    Co.    v. 

to  obstruction  to  access  and  egress  by  Bloom,  71  Miss.  247,  15  So.  72.     As 

railroad  tracks,  structures  or  cars,  see  to  municipal  liability  for  nuisance  in 

§§  247-250,  herein.  highway,   see   §    264,   herein.      As    to 

54.  Aldrich  v.  Wetmore,  52  Minn.  municipal  liability  generally,  see  §§ 
164,  53  N.  W.  1072.  353-358,  herein. 

55.  Hayes  v.  Chicago,  St.  P.,  M.  58.  Kaje  v.  Chicago,  St.  P.,  M.  & 
&  O.  R.  Co.,  46  Minn.  349,  49  N.  W.  O.  Ry.  Co.,  57  Minn.  422,  59  N.  W. 
61,  so  holding  where  cars  standing  493,  47  Am.  St.  R.  627.  See  Strunk 
on  a  crossing  for  several  hours  at  a  v.  Pritchett,  27  Ind.  App.  582,  61  N. 
time  produced  such  an  injury.  E.  973. 

56.  O'Brien    v.     Central    Iron    &  — 

274 


Nuisances  Affecting  Highways.  §  223 

able  and  necessary  one,  both  as  to  the  extent  to  which  the  high- 
way is  used  and  the  duration  of  time  the  use  continues.59  So  in 
a  late  case  in  Illinois  it  is  said  in  this  connection :  "  Abutters  upon 
a  public  street  may  use  the  sidewalks  in  front  of  their  premises 
for  the  purpose  of  loading  and  unloading  goods,  merchandise  or 
other  like  articles  in  which  they  may  deal  or  use,  but  the  sidewalks 
belong  to  the  public  and  the  public  primarily  have  the  right  to  the 
free  and  unobstructed  use  thereof,  subject  to  reasonable  and  neces- 
sary limitations,  one  of  which  is  the  right  of  an  abutting  owner  to 
temporarily  obstruct  the  walk  by  loading  or  unloading  goods,  wares 
or  merchandise  when  such  obstruction  is  reasonably  necessary. 
Such  obstruction,  must,  however,  be  both  reasonable  as  to  the 
necessity  therefor  and  temporary  in  point  of  time.  The  prior  and 
superior  right  of  passage  is  possessed  by  the  public.  A  merchant  or 
businessman  cannot  be  permitted  to  so  conduct  his  business  of  re- 
ceiving and  delivering  the  commodities  in  which  he  deals,  as  that 
the  sidewalks  shall  be  substantially  appropriated  to  the  transaction 
of  his  affairs.  A  business  which  has  reached  that  magniture 
cannot  be  accommodated  by  the  appropriation  of  the  public  side- 
walks to  its  purposes,  but  the  proprietor  must  enlarge  his  place  of 
business,  procure  another  location  which  will  meet  its  demands, 
or  otherwise  provide  for  the  transaction  of  his  business  in  such 
manner  that  the  public  will  not  be  asked  to  submit  to  other  than 
reasonable  and  merely  temporary  obstructions  of  the  public 
way."  60  And  in  a  recent  case  in  New  York  it  is  declared  that : 
"  It  is  true  that  persons  engaged  in  business  in  a  city  have  the 
right  to  use  the  streets  and  sidewalks  for  the  purpose  of  unload- 

59.  Gerdes  v.  Christopher  &  Simp-  ney-General  v.  Brighton  &  Hove  Co- 
son  A.  I.  &  F.  Co.,  124  Mo.  347,  25  op.  Supply  Ass'n,  G9  Law  J.  Ch.  204, 
S.  W.  557;  Holsey  v.  Rapid  Transit  81  Law  T.  (U.  S.)  762  [1900],  1 
Street  R.  Co.,  47  N.  J.  Eq.  380,  20  Ch.  276;  King  v.  Russell,  6  East, 
Atl.  859;   Flynn  v.  Taylor,  127  N.  Y.  427. 

596,   28   N.  E.  418,  40  N.  Y.   St.  R.  60.  Garibaldi     v.     O'Connor,     210 

187,  14  L.  R.  A.  556;  Welsh  v.  Wil-  111.  284,  287,  71  N.  E.  379,  66  L.  R. 

son,    101  N.  Y.  254,  4  N.  E.  633,  54  A.    73.        See,   also,    as    to   procuring 

Am.    Rep.    698;   Tuomey   v.    O'Reilly,  another  location,   People  v.   Cunning- 

3   Misc.    R.    (N.    Y.)    302,   22   N.    Y.  ham,   1   Denio    (N.   Y.),  524,  43   Am. 

Suppl.    930,    52    N.    Y.    St.    R.    119;  Dec.    709;  King  v.   Russell,    6   East, 

Jochem  v.  Robinson,  66  Wis.  638,  29  427. 
N.  W.  642,  57  Am.  Rep.  298;   Attor- 


§224  Nuisances  Affecting  Highways. 

ing  and  loading  goods  that  have  to  be  taken  into  and  from  their 
buildings  and  storehouses.  It  is  also  true  that  highways  and  side- 
walks may  be  temporarily  blocked  when  necessary."  The  court 
then  referred  to  the  decision  in  Welsh  v.  Wilson,61  holding  that 
a  merchant  had  the  right  to  place  skids  across  the  sidewalk  for 
the  purpose  of  loading  and  unloading  goods  and  said :  "  While  we 
approve  fully  of  the  conclusion  reached  in  that  case  under  the 
facts  there  disclosed,  it  should  not  be  understood  as  authorizing 
the  practical  obstruction  of  a  street  for  the  greater  portion  of  the 
time,  or  as  establishing  a  hard  and  fast  rule  which  must  control 
in  all  cases.  Places  and  circumstances  widely  differ.  That  which 
would  but  slightly  inconvenience  the  public  in  one  place,  might 
in  another  very  seriously  impede  and  discommode  travelers.  The 
use  by  a  merchant  of  a  back  street  but  little  traveled  might  be 
reasonable  and  justified,  while  a  like  use  of  a  main  thoroughfare 
constantly  crowded  with  passing  people  would  become  at  once  un- 
reasonable and  a  nuisance  that  could  not  be  tolerated.  Reasonable 
use  therefore  is  ordinarily  a  question  of  fact  depending  upon  its 
being  temporary  and  necessary,  having  reference  to  time,  place 
and  circumstances."  62  If,  in  this  class  of  cases,  an  individual  sus- 
tains an  injury,  by  reason  of  such  a  nuisance,  which  differs  in 
kind  from  that  sustained  by  the  public  at  large,  he  will  be  entitled 
to  maintain  a  private  action  therefor.  Thus  it  was  decided  that 
the  proprietor  of  a  large  retail  store  sustained  an  injury  of  such  a 
character  where  by  reason  of  the  continuous  obstruction  of  the 
neighboring  sidewalk  for  several  hours  a  day  travel  was  diverted 
to  the  other  side  of  the  street.03 

§  224.  Same  subject — Fact  that  business  lawful  or  use  neces- 
sary may  be  immaterial. — Where  a  person  in  carrying  on  a  busi- 
ness obstructs  the  highway,  in  the  loading  and  unloading  of  goods, 
so  that  the  right  of  the  public  to  use  the  street  cannot  be  exercised 

61.  101  N.  Y.  254.  63.  Flynn    v.    Taylor,    127    N.    Y. 

62.  Murphy  v.  Leggett,  164  N.  Y.  596,  40  N.  Y.  St.  R.  187,  28  N.  E. 
121,  125,  126,  58  N.  E.  42,  per  Haight,  418,  14  L.  R.  A.  556.  As  to  necessity 
J.  See,  also,  upon  question  of  what  and  existence  of  special  injury  in 
i3  reasonable  use,  Gerdes  v.  Christo-  cases  of  nuisance  affecting  highway, 
pher  &  Simpson  A.  I.  &  F.  Co.,  124  see  §§  218-221,  herein. 

Mo.  347,  25  S.  W.  557. 

276 


Nuisances  Affecting  Highways.  §  224 

to  the  extent  which  the  law  requires,  the  fact  that  the  business  is  a 
lawful  one  and  that  the  use  of  the  street  is  only  such  as  is  reason- 
able and  necessary  for  the  proper  conduct  of  the  business1,  is  imma- 
terial. The  private  right  of  use  in  such  case  must  give  way  to  the 
right  of  the  public  and  so  long  as  it  continues  in  conflict  with  the 
latter  right  a  public  nuisance  exists.  The  following  words  of  the 
court  in  a  recent  English  case  are  pertinent  in  this  connection : 
"  The  defendants  say  that  they  are  carrying  on  a  lawful  business, 
and  that  they  are  carrying  it  on  in  a  way  which  is  so  far  reason- 
able that  it  is  really  necessary,  if  they  are  to  carry  on  their  busi- 
ness here  at  all,  that  they  should  do  very  much  as  they  are  doing. 
It  seems  to  me,  that  if  we  look  only  at  the  carrying  on  of  their 
business,  that  what  they  are  doing  is  perfectly  reasonable.  They 
have  a  large  business,  there  is  a  great  deal  of  loading  and  unload- 
ing to  be  done,  they  have  a  number  of  carts,  and  they  do  not 
dawdle,  as  far  as  I  can  see — that  is  to  say,  each  cart  is  loaded  and 
unloaded  with  fair  despatch ;  there  is  no  complaint  about  that,  and 
therefore  we  have  to  consider  what  is  the  consequence  of  their 
reasonable  exercise  of  their  rights  coming  into  conflict  with  the 
rights  of  the  public  to  use  this  highway.  Now,  I  take  the  law 
to  be  that  which  was  laid  down  long  ago,  and  I  believe  with  per- 
fect correctness  in  Rex  v.  Russell.64  The  facts  there  were  not 
quite  the  same  as  here ;  but  what  I  am  going  to  read  appeal's  to 
me  to  express  in  better  language  than  I  could  call  up  for  the 
time  what  the  law  is,  and  it  has  the  great  advantage  of  having 
stood  the  test  of  the  best  part  of  a  hundred  years  of  criticism. 
What  the  court  said  was :  '  That  it  should  be  fully  understood  that 
the  defendant  could  not  carry  on  any  part  of  his  business  in  the 
public  street  to  the  annoyance  of  the  public.  That  the  primary 
object  of  the  street  was  for  the  free  passage  of  the  public,  and 
anything  which  impeded  that  free  passage,  without  necessity,  was 
a  nuisance.  That  if  the  nature  of  the  defendant's  business  was 
such  as  to  require  the  loading  and  unloading  of  so  many  more  of 
his  wagons  than  could  conveniently  be  contained  within  his  own 
private  premises,  he  must  either  enlarge  his  premises,  or  remove 
his  business  to  some  more  convenient  spot.'  I  take  that  to  be  the 
law.     In  substance  that  comes  to  this — that  in  case  of  doubt  or 

64.  6  East,   427. 

277 


g  225  Nuisances  Affecting  Highways. 

difficulty  the  private,  reasonable  right  to  carry  on  one's  business 
must  give  way  to  the  public  right  of  using  the  street.  If  the  pub- 
lic right  of  using  the  street  is  so  obstructed,  in  fact,  that  that  right 
cannot  be  used  to  the  extent  which  the  law  requires,  then  the  pri- 
vate right  must  give  way ;  and  to  my  mind  it  is  not  an  answer  to 
say  that  the  defendants  can  go  on  using  this  street  in  a  way  that  is 
reasonable,  having  regard  to  their  interests  alone."  65 

§  225.   Same  subject — Application  of  rules. — In  the  applica- 
tion of  the  rule  that  an  abutter  may  make  reasonable  use  of  the 
highway  for  the  purpose  of  loading  and  unloading  goods  and  mer- 
chandise used  in  connection  with  his  business,  it  has  been  decided 
that  a  manufacturing  company  has  the  right  to  make  reasonable 
use  of  the  streets  for  the  deposit  of  their  manufactured  goods,  for 
the  purpose  of  loading  and  unloading  them  though  not  directly 
authorized  by  an  ordinance  of  the  city.     But  it  has  no  right  to 
make  a  permanent  use  of  the  streets  for  the  purpose  of  storing  its 
property  or  to  make  such  temporary  use  as  will  unreasonably  inter- 
fere with  travel.66     And  where  a  person  who  carried  on  a  large 
retail  business  used  for  the  purpose  of  such  business  a  large  num- 
ber of  vans  and  carts  which  were  loaded  and  unloaded  from  their 
premises,  and  these  vehicles  blocked  up  one-half  of  the  street  dur- 
ing a  great  part  of  the  day,  it  was  held  that  such  use  of  the  high- 
way was  not  a  reasonable  one  but  constituted  a  nuisance  which 
ought  to  be  restrained.67    And  where  the  proprietors  of  a  distillery 
were  in  the  habt  of  delivering  their  "  slops  "  through  pipes  into 
casks     placed     in     wagons,     and     carts     which     were     standing 
in     the     street     in     front     of     the     distillery     and     the     teams 
and    wagons    of    the    purchasers    were    accustomed    to    collect, 
there     in     great     numbers     to     receive     and     take     away     the 

65.  Attorney-General    v.    Brighton  66.  Gerdes  v.  Christopher  &  Simp- 

&  Hove  Coop.  Supply  Assoc,  69  Law  son  A.  I.  &  F.  Co.,  124  Mo.  347,  25 

J.  Ch.  204  (1900),  1  Ch.  276,  81  Law  S.  W.  557. 

T.    (U.   S.)    762,  per   Lindley,  M.   R.  67.  Attorney-General    v.    Brighton 

See,    also,  People   v.    Cunningham,    1  &  Hove  Co-op.  Supply  Assn.,  69  Law 

Denio   (N.  Y.),  524,  43  Am.  Dec.  709.  J.  Ch.  204   (1900),  1  Ch.  276,  81  Law 

The  fact  that  a  business  or  trade  T.   (N.  S.)   762. 
which  is  a  nuisance  is  lawful   is  im- 
material.    See  §  99,  herein. 

278 


Nuisances  Affecting  Highways.  §  226 

article,  and  in  consequence  thereof  and  of  the  strife  and 
disorderly  conduct  of  the  drivers  in  their  endeavors  to  obtain  pri- 
ority, the  street  was  obstructed  and  rendered  inconvenient  to  those 
passing  thereon,  it  was  held  that  a  nuisance  was  thereby  created  of 
which  the  proprietors  were  guilty  and  the  fact  that  the  business 
was  lawful  was  declared  to  be  no  justification.  The  court  also 
said  in  this  case  that  if  the  necessities  of  the  business  were  such 
as  to  require  the  assembling  of  the  wagons,  the  defendants  must 
either  enlarge  their  plant  or  remove  elsewhere.68 

§  226.  Skids  or  platforms  for  loading  or  unloading  merchan- 
dise.— The  use  of  skids  across  the  sidewalk  for  the  purpose  of  load- 
ing and  unloading  goods  used  in  connection  with  a  business  con- 
ducted by  an  abutter,  is  not  necessarily  a  nuisance  in  the  absence 
of  some  express  provision  of  law  which  makes  it  such.69  A  use  of 
this  character,  if  reasonable,  may  be  justified  by  the  necessity  of 
the  business.  And  it  has  been  declared  that  the  necessity  sufficient 
to  justify  it  need  only  be  reasonable.70  So  it  has  been  decided  that 
a  person  may  place  skids  over  the  sidewalk  in  front  of  his  store  for 
the  purpose  of  unloading  heavy  barrels  of  sugar,  though  there  is 
an  alley  at  the  back  of  his  store,  where  it  appears  that  the  unload- 
ing could  not  be  accomplished  in  such  alley  without  great  incon- 
venience.71 And  it  has  been  decided  that  the  use  of  skids  extend- 
ing from  a  railroad  car  to  a  warehouse,  where  there  is  sufficient 
room  on  the  other  side  of  the  street  for  travel  to  pass,  is  not  a  nuis- 
ance where  the  duration  of  their  use  is  reasonably  short.72  An 
abutter  cannot,  however,  appropriate  the  highway  to  the  purposes 
of  his  private  business  to  the  exclusion  of  the  rights  of  the  public. 
His  use  must  be  a  reasonable  one,  having  regard  to  the  public  con- 
venience and  the  necessities  of  travel.  So  the  continuous  obstruc- 
tion of  a  sidewalk  by  skids  for  several  hours  each  day  will  be  a 
nuisance  which  may  be  restrained.73    And  a  platform  in  front  of  a 

68.  People  v.  Cunningham,  1  71.  Jochem  v.  Robinson,  72  Wis. 
Denio  (N.  Y.),  524,  43  Am.  Dec.  709.  199,  39  N.  W.  383,  1  L.  R.  A.  178. 

69.  Welsh  v.  Wilson,  101  N.  Y.  72.  Mathews  v.  Kelsey,  58  Me.  50, 
254,  4  N.  E.  633,  54  Am.  Rep.  698.  4  Am.  Rep.  248. 

70.  Jochem  v.  Robinson,  72  Wis.  73.  Callanan  v.  Gilman,  107  N.  Y. 
199,  39  N.  W.  383,  1  L.  R.  A.  178.  36,  14  N.  E.  264,  1  Am.  St.  R.  831. 

270 


§  227  Nuisances  Affecting  Highways. 

business  place,  within  the  stoop  line  prescribed  by  the  municipal 
authorities  and  used  in  connection  with  the  loading  and  unloading 
of  goods,  has  been  held  not  to  be  a  nuisance  per  se,  though  it  may 
become  a  nuisance  if  the  use  is  unreasonable.74  Again,  it  has  been 
decided  that  a  platform  built  in  a  private  alley  at  the  rear  of  a 
store  for  convenience  in  transferring  goods,  cannot  be  assumed  as 
a  matter  of  law  to  be  an  obstruction  or  a  nuisance,  it  being  declared 
that  such  an  alley  is  not  a  public  highway  and  an  obstruction 
therein  is  not  a  public  wrong  though  it  may  be  a  private  nuisance.75 

§  227.  Exposure  of  wares  for  sale — Storing  goods  in  high- 
way—  Show  cases. — A  business  man  cannot  obstruct  the  highway 
by  using  it  for  the  purpose  of  exposing  his  wares  for  sale.76  Nor 
can  it  be  obstructed  by  using  it  as  a  storage  ground  for  goods,  mer- 
chandise or  other  personal  property  of  an  individual,77  as  such  a 
use  creates  a  public  nuisance.78  So  the  obstruction  of  the  pave- 
ments of  a  street  as  a  storage  ground  for  slabs  used  in  a  slate  fac- 
tory, where  such  obstruction  is  not  a  temporary  one  for  the  pur- 
pose of  conveying  material  to  or  manufactured  goods  from  the  fac- 
tory, is  unlawful  and  constitutes  a  public  nuisance  and  renders  the 
one  so  using  the  pavements  responsible  for  injuries  occasioned  by 
his  conduct  to  any  person  lawfully  using  the  highway  and  who  is 
not  himself  at  fault.79  And  where  the  light  is  obstructed  from  a 

See  Wynn  v.  Yonkers,  80  App.  Div.  to  grant  a  permit  to  an  individual  to 

(N.  Y.)  277,  80  N.  Y.  Suppl.  257.  store  a  wagon  in  a  street  of  the  city. 

74.  Murphy  v.  Leggett,  164  N.  Y.  Therefore  a  permit  conferred  no 
121,  58  N.  E.  42,  affirming  29  App.  right,  and  a  wagon  stored  in  a  Btreet 
Div.  309,  51  N.  Y.  Suppl.  472.  in  pursuance  thereof  was  held  to  be 

75.  Bagley  v.  People,  43  Mich.  a  nuisance  for  which  the  city  and  its 
355,  5  N.  W.  415,  38  Am.  Rep.  192.  licensee  were  both  responsible.  Cohen 

76.  Rex  v.  Carlile,  6  Car.  &  P.  v.  New  York,  113  N.  Y.  532,  21  N.  E. 
636-  700,  23  N.  Y.  St.  R.  509,  10  Am.  St. 

77.  Marine  Ins.   Co.  v.   St.  Louis,  R.  506,  4  L.  R.  A.  406,  rev'g  43  Hun 
I.   M.   &  S.  R.   Co.,  41   Fed.    643,   43  (N.  Y),  345,  6  N.  Y.  St.  R.  532. 
Am.  &  Eng.  R.  Cas.  79.  79.  Rachmel  v.  Clark,  205  Pa.  St. 

78.  Sullivan  v.  McManus,  19  App.  314,  54  Atl.  1027,  14  Am.  Neg.  R. 
Div.  (N.  Y.)  167,  45  N.  Y.  Suppl.  208,  so  holding  where  a  boy  was  in- 
10' 9-  jured    by    a    slab    falling    upon    him 

No    power   was  given   to   com-       while  leaning  against  the  slabs. 
mon   council  of  New   York   City 

2S0 


Nuisances  Affecting  Highways.  §228 

storekeeper's  windows  and  premises  by  a  show  case  and  sign  main- 
tained by  the  proprietor  of  an  adjoining  store  in  front  of  his 
premises,  the  former  will  be  entitled  to  an  injunction  against  the 
continuance  of  such  obstruction.80  And  where  a  city  having  notice 
of  an  unlawful  obstruction  of  the  sidewalk  by  the  maintenance  of 
a  show  case  thereon  by  a  storekeeper,  allows  it  to  remain,  it  has 
been  decided  that  it  will  be  liable  to  one  who,  while  in  the  exercise 
of  due  care,  is  injured  by  its  falling  upon  him.81 

§  228.  Market  places. — A  market  place  erected  in  a  city  street 
and  which  interferes  with  commodious  passage  through  such  street 
is  a  nuisance,82  which  may  be  enjoined  at  the  suit  of  one  sustaining 
a  special  injury  by  its  maintenance.83  And  a  city  may  be  enjoined 
from  using  or  authorizing,  or  taking  pay  or  fees  for,  such  use  of 
the  streets  of  the  city.84  And  it  has  been  decided  that  the  legisla- 
ture has  not  the  power,  under  the  constitution  of  the  State  of  New 
Jersey,  to  authorize  a  market  to  be  held  in  a  public  street  of  a  city, 
without  providing  compensation  to  the  proprietors  of  the  contigu- 
ous lands  who  own  to  the  centre  of  such  street,  as  such,  a  use  con- 
stitutes an  additional  burden  for  which  the  abutting  owner  must, 
be  eompensated.85 

80.  Hallock  v.  Scheyer,  33  Hun  jury  sufficient  to  entitle  him  to  an 
(N.  Y.),  111.  See,  also,  Lavery  v.  injunction.  Richmond  v.  Smith,  148 
Hannigan,  52  N.  Y.  Super.  Ct.  463.  Ind.  294,  47  N.  E.  630. 

81.  Wells  v.  Brooklyn,  9  App.  Div.  84.  McDonald  v.  Newark,  42  N.  J. 
(N.  Y.)   61,  41  N.  Y.  Suppl.  143.     As  Eq.  136,  7  Atl.  855. 

to  liability  of  municipality  for  fail-  A  city  is  properly  a  defendant 
ure  to  remove  or  abate  a  nuisance,  in  a  proceeding  to  enjoin  the  main- 
see  §§  357,  358,  herein.  tenance  of  such  a  market  where  the 

82.  State  v.  Mayor  of  Mobile,  5  municipal  authorities  are  required 
Port.  (Ala.)  279,  30  Am.  Dec.  564;  by  statute  to  remove  public  nuisances 
McDonald  v.  Newark,  42  N.  J.  Eq.  from  the  street  and  are  given  the 
136,  7  Atl.  855.  power  to   control,  regulate   and   pre- 

83.  McDonald  v.  Newark,  42  N.  J.  serve  them  for  the  use  of  the  public. 
Eq.  136,  7  Atl.  855.  Herrick   v.    Cleveland,   7   Ohio  C.   C. 

Where      access      to      abutting  470. 

property  is   materially   impeded  by  85.  State  v.  Laverack,  34  N.  J.  L. 

a   market   so   maintained   the  owner  201. 
of  such  property  suffers  a  special  in- 


281 


§§  229,  230     Nuisances  Affecting  Highways. 

§  229.  Deposit  of  building  materials  and  earth  in  street. — 
An  owner  of  property  abutting  on  a  city  street  who  has  occasion 
to  build  and  for  that  purpose  it  is  necessary  to  dig  cellars,  may,  in 
the  absence  of  any  provision  by  statute  or  regulation  by  the  muni- 
cipal authorities  which  is  controlling,  deposit  the  building  mater- 
ials and  earth  within  the  limits  of  the  highway,  provided  he  takes 
care  not  improperly  to  obstruct  the  same  and  to  remove  them  with- 
in a  reasonable  time.86  So  a  temporary  use  of  the  street  under 
such  circumstances  for  the  deposit  of  mortar  boxes  or  the  making 
of  mortar  beds  is  not  a  nuisance.87  And  though  an  abutting  owner 
might  place  them  in  his  yard  or  garden,  he  is  not  bound  to  do  so 
at  the  peril  of  injury  to  his  shrubbery  or  plants.88  Encroachments 
of  such  a  character  must,  however,  be  reasonable,  not  continued 
longer  than  necessary  and  must  be  properly  guarded  and  protected 
in  order  to  secure  the  public  against  danger.89  And  the  fact  that 
a  city  council  has  granted  a  license  to  one  to  use  a  street  for  the 
deposit  of  building  material,  does  not  suspend  or  abrogate  the 
duty  of  the  city  to  exercise  reasonable  care  to  keep  the  highway  in 
a  safe  condition.90 

§  230.  Excavations — Generally. — The  right  of  the  public  to 
the  use  of  the  highway  being  subject  to  such  incidental  and  tem- 
porary obstructions  as  are  reasonable  and  which  manifest  necessity 
may  require,  it  may  be  stated  that  in  the  absence  of  any  statutory 
or  municipal  regulation  in  respect  thereto,  certain  excavations,  as 
for  instance  those  which  are  necessary  to  building  operations  and 

86.  Costello  v.  State,  108  Ala.  45,  ize   such  an   obstruction.     People  v. 

18  So.  820,  35  L.  R.  A.  303;  Johnson  Mayor  of  New  York,  59  How.  Prac. 

Chair   Co.   v.    Agresto,    73    111.    App.  (X.  Y.)   277. 

384;      O'Linda  v.  Lothrop,   21    Pick.  87.  Strauss  v.   City  of  Louisville, 

(Mass.),   292;     Pueschell  v.   Suther-  108  Ky.  155,  55  S.  W.  1075. 

land,  79  Mo.  App.  459,  2  Mo.  A.  Rep.  88.  Loberg    v.    Amherst,    87    Wis. 

473;   Stuart  v.  Havens,   17  Neb.  211,  634,  58  N.  W.  1048,  41  Am.  St.  R.  69. 

22  N.   W.  419;   Cohen  v.   New  York,  89.  Chicago    City    v.    Robbins,    2 

113  N.  Y.   532,   21  N.  E.   700,  23  N.  Black    (U.   S.),   418,   424,   17   L.   Ed. 

Y.  St.  R.  509,   10  Am.  St.  R.  506,  4  298;     Hundhausen  v.   Bond,  36  Wis. 

L.  R.  A.  406;  Commonwealth  v.  Pass-  29. 

more,  1  Serg.  &  R.   (Pa.)   219;  Hund-  90.  Grant  v.  Stillwater,  35   Minn, 

hausen  v.  Bond,  30  Wis.  29.  242,  28  N.  W.  660. 

Common    council   may   author- 

282 


Nuisances  Affecting  Highways.  §  230 

the  repair  of  houses  and  buildings,  may  be  made  in  a  highway  and 
are  not  necessarily  nuisances'  though  they  may  become  such  under 
some  circumstances.91  The  making  of  excavations,  however,  in  the 
streets  of  a  city  is  ordinarily  a  matter  within  the  control  and  regu- 
lation of  the  municipal  authorities  and  in  such  cases  a  permit  is 
generally  required.  Where  this  condition  exists  it  would  seem 
that  an  excavation  made  by  one  without  the  requisite  authority, 
would  be  a  nuisance.92  But  though  the  right  to  make  an  excavation 
may  be  recognized  and  does  in  fact  exist,  yet  certain  duties  to- 
ward the  public  are  imposed  upon  the  one  making  it.  Though  the 
excavation  may  not  in  itself  be  a  nuisance,  yet  it  may  be  so  main- 
tained as  to  become  one.  It  must  be  properly  protected.  It  should 
only  take  up  so  much  of  the  highway,  and  should  be  maintained 
only  for  such  a  length  of  time  as  is  reasonably  necessary  to  affectu- 
ate  the  purposes  for  which  it  was  intended.  So  an  excavation  in 
the  street  or  an  area  in  the  sidewalk  if  left  open  and  unprotected 
so  that  it  is  dangerous  to  the  traveling  public,  becomes  a  nuis- 
ance.93 The  obligation  also  rests  upon  one  who  has  made  an  exca- 
vation in  the  highway  to  restore  it  to  its  former  safe  condition  and 
the  failure  to  do  so  will  create  a  nuisance.94  In  case  a  special 
injury  is  sustained  by  reason  of  a  nuisance  of  this 
character,  he  may  recover  therefor  from  the  one  liable. 
So  where  an  abutting  owner  on  a  street  which  had  been 
rendered  impassible  by  reason  of  a  nuisance  consisting  of  an  exca- 
vation made  by  the  city,  sustained  an  injury  to  the  rental  value  of 
his  property,  it  was  held  that  he  might  recover  therefor.95  And  it 
has  been  decided  that  the  liability  of  one  who,  without  authority, 
makes  an  excavation  in  a  highway,  is  not  discharged  or  affected 
by  the  fact  that  he  provided  a  sufficient  covering  therefor  which 

91.  Clark  v.  Fry,  8  Ohio  St.  358,  142,  affirmed  in  129  111.  379,  21  N.  E. 
72  Am.  Dee.  590.  See  Beatty  v.  Gil-  800;  Condon  v.  Sprigg,  78  Md.  330, 
more,  16  Pa.  463,  55  Am.  Dec.  514.  28  Atl.  395;  Irwin  v.  Sprigg,  6  Gill. 

92.  Robinson  v.  Smith,  25  Mont.  (Md.)  200;  Stuart  v.  Havens,  17 
391,  65  Pac.  114;   Congreve  v.  Stand-  Neb.  211,  22  N.  W.  419. 

aid    Oil    Co.,   54   Hun    (N.    Y.),   44;  94.  Robinson    v.    Mills,    25    Mont. 

Irvin  v.  Fowler,  5  Rob.   (N.  Y.)  482.  391,  65  Pac.  114. 

93.  Chicago  City  v.  Robbins,  2  95.  Van  Siclen  v.  New  York,  61  N. 
Black    (U.  S.),  418,   424,   17   L.  Ed.  Y.  Supp.  555,  32  Misc.  403. 

298;  Tomle  v.  Hampton,  28  111.  App. 

283 


$231  .Nuisances  x\ffectixg  Highways. 

was  destroyed  by  the  act  of  a  wrongdoer  as  he  is  bound  at  his  peril 
to  keep  it  so  covered  that  the  highway  will  be  as  safe  as  it  was 
before.96  Again,  though  an  excavation  is  not  upon  the  highway 
but  on  the  abutting  property,  yet  it  may  be  so  close  thereto  that 
by  reason  of  the  want  of  proper  safeguards  one  passing  along  the 
highway  may,  in  the  exercise  of  ordinary  care,  fall  into  it.  In 
such  a  case  it  is  also  held  to  be  a  nuisance  per  se.97 

§  231.  Vaults  and  excavations  under  sidewalks — Coal  holes, 
openings,  etc. — The  construction  by  an  abutting  owner  without 
authorization  by  the  proper  authorities,  of  a  vault  under  the  side- 
walk, though  it  is  provided  with  a  proper  covering,  as  in  the  case 
of  a  coal  hole,  is  in  some  cases,  especially  in  New  York,  held  to 
be  an  unlawful  appropriation  by  the  individual  of  the  highway  to 
a  purpose  foreign  to  that  for  which  it  was  dedicated,  and  there- 
fore a  nuisance.98  So  in  a  decision  in  New  York  it  was  held  that 
a  coal  hole  in  a  sidewalk  was  a  nuisance.  The  court  said :  "  The 
public  are  entitled  to  an  unobstructed  passage  upon  the  streets, 
including  the  sidewalks  of  the  city,  but  a  structure  such  as  that 
proved  in  this  case  was  an  obstruction.  It  was  sufficient  for  the 
plaintiff  to  prove  that,  in  passing  along  the  sidewalk  he  was  in- 
jured by  this  structure  which  was  appurtenant  to  defendant's 
premises.  It  was  not  necessary  to  prove  negligence.  The  action 
was  not  based  upon  negligence,  but  on  a  wrongful  act  for  which 
the  defendants  were  responsible.  If  a  permit  was  material,  the 
effect  of  it  would  only  be  to  mitigate  the  act  from  an  absolute 
nuisance,  to  an  act  involving  care  in  the  construction  and  main- 
tenance, and  to  justify  such  a  structure  it  would  be  necessary  not 
only  to  plead  it,  but  also  to  allege  and  prove  a  compliance  with 
its  terms,  and  that  the  structure  was  properly  made  and  main- 
tained, to  secure  the  same  safety  to  the  public,  that  the  sidewalk 
would  have  secured  to  it'  "   It  would  seem,  however,  that  such  an 

98.  Congreve  v.  Morgan,  18  N.  Y.  98.  Irvine  v.  Wood,  51  N.  Y.  224, 

84,  72  Am.  Dec.  495.     See  Congreve  10    Am.    Rep.    603.     See  Greasten  v. 

v.  Smith,  18  N.  Y.  179.  Chicago,  40  111.  App.  607. 

97.  State  v.  Society  for  Establish-  99.  Clifford  v.  Dam,  81  N.  Y.  52, 

ing   Useful   Manufactures,    42   N.    J.  56,  per  Church,  Ch.  J.,  affirming  44 

Eq.  504.       Compare   Beck  v.  Carter,  N.  Y.  Super  Ct.  391. 
68  N.  Y.  283,  13  Am.  Rep.  175. 

284 


Nuisances  Affecting  Highways.  §  231 

excavation  as  a  coal  hole,  if  properly  constructed  and  covered  and 
so  maintained  that  the  highway  is  as  safe  for  passage  as  it  was 
before  and  travel  is  in  no  way  obstructed  or  the  use  of  highway  as 
such  interfered  with,  would  not  be  a  nuisance,  in  the  absence  of 
some  express  provision  of  law  making  it  unlawful  and  a  nuisance. 
And  this  may  be  said  to  be  the  rule  which  has  the  sanction  of  the 
authorities1.100  As  is  said  in  a  case  in  Michigan :  "  We  are  satis- 
fied that  at  common  law  the  making  of  such  excavation  under  side- 
Avalks  in  cities,  and  the  scuttles  therein,  for  such  purposes  as  this 
was  made  and  used  for,  were  not  treated  as  nuisances  in  them- 
selves, or  in  any  respect  illegal,  unless  the  walk  was  allowed  to 
remain  broken  up  for  an  unreasonable  length  of  time,  or  the  work 
was  improperly  or  unsafely  constructed,  though  it  would  after- 
wards become  a  nuisance  if  not  kept  in  repair."  101  So  it  has  been 
decided  that  a  hatchway  in  a  walk  leading  to  a  cellar  is  not  a  nuis- 
ance per  se.102  And  likewise  that  an  opening  in  a  walk,  such,  as 
is  usual  for  light  and  ventilation  in  front  of  a  cellar  window,  which 
was  within  the  line  of  the  doorsteps,  and  which  was  only  fifteen 
inches  wide  and  about  three  feet  long  was  not  in  itself  a  nuis- 
ance.103 But  where  there  was  an  excavation  about  four  feet  wide 
which  extended  nearly  the  whole  width  of  the  sidewalk  and  which 
was  covered  with  wooden  doors  it  was  held  to  be  a  nuisance,  as  it 
was  in  effect  an  appropriation  of  the  entire  walk,  making  the  ease- 
ment of  the  public  secondary  to  the  private  use  of  the  adjoining- 
owner.104  In  this  class  of  cases  the  duty  rests  upon  the  person  main- 
taining the  vault  to  keep  the  cover  thereto  in  such  a  condition  that 
one  using  the  highway  with  ordinary  care  and  in  accordance  with 
its  purposes  will  not  be  injured,  and  where  he  fails  to  do  this  he 

100.  Fisher  v.  Thirkell,   21  Mich.       1,    19,    4    Am.    R.    422,    per    Chris- 
1,  4  Am.  Rep.  422;   Benjamin  v.  Met-      tiancy,  J. 

ropolitan  Street  R.  Co.,  133  Mo.  274,  102.  Wabash  v.  Southworth,  54 
34  S.  W.  590;  Gordon  v.  Peltzer,  56  Minn.  79,  55  N.  W.  818.  See  Will- 
Mo.  App.  599 ;  Kirkpatrick  v.  Knapp,  iams  v.  Hynes,  55  N.  Y.  Super.  Ct. 
28  Mo.  App.  431 ;   Adams  v.  Fletcher,  86. 

17  R.  I.  137,  20  Atl.  263,  33  Am.  St.  103.  King  v.  Thompson,  87  Pa.  St. 

R.    859.        See   Wharton    on    Neg.    §  365,  30  Am.  Rep.  364. 

816;  Thompson  on  Neg.   §  7.  104.  Memphis    v.    Miller,    78    Mo. 

101.  Fisher  v.  Thirkell,  21   Mich.  App.  67,  2  Mo.  App.  Repr.  235. 


285 


§  232  Xuisaxces  Affecting  Highways. 

will  be  liable  for  an  injury  sustained  in  consequence  thereof.100  But 
where  a  tenant,  and  not  the  owner,  is  in  the  possession  of  property 
in  front  of  which  there  is  an  opening  to  a  vault  under  the  sidewalk 
and  the  duty  rests  upon  the  former  to  keep  the  premises  in  repair, 
it  has  been  determined  that  the  owner  will  not  be  liable.106 

§  232.  Same  subject — Effect  of  license. — License  from  the 
municipal  authorities,  having  the  power  to  grant  it,  to  make  a 
coal  hole,  vault,  or  other  excavation  in  or  under  the  sidewalk  will 
ordinarily  eliminate  the  question  of  whether  it  is  a  nuisance  of 
itself.107  So  it  has  been  decided  that  iron  doors  in  a  sidewalk  over 
a  cellar,  which  have  been  maintained  for  several  years  with  the 
consent  of  the  city  authorities  will  not  render  one  liable  as  for  the 
maintenancei  of  a  nuisance  to  one  who  slips  upon  them  and  is  in- 
jured.108 The  fact,  however,  that  the  right  may  be  conferred  by  a 
license  from  the  municipal  authorities  to  construct  a  vault  under 
the  sidewalk  with  an  opening  thereto  in  the  walk  does  not  relieve 
the  one  to  whom  such  license  is  granted  from  certain  duties  and 
obligations  to  the  public  as  to  its  construction  and  maintenance. 
There  still  exists  the  obligation  to  construct  and  maintain  it  in  a 
proper  manner  so  that  the  highway  be  as  safe  for  passage  as  it  was 
before.  He  cannot  permit  it  to  become,  by  any  act  of  negligence 
or  carelessness  on  his  part,  unsafe  for  public  travel  or  an  impedi- 
ment thereto  and  then  shelter  himself  from  liability  by  the  fact 
that  its  construction  and  maintenance  was  licensed.109  So  it  has 
been  said  that  "  When  permission  is  given  by  a  municipal  author- 
ity, to  interfere  with  a  street  solely  for  private  use  and  conven- 

1.05.     See  §§  230,  232,  herein,  as  to  thorized  by  municipality,  see  §§  78-80, 

excavations  and  effect  of  license.  herein. 

106.  Fisher  v.  Thirkell,  21  Mich.  108.  Sandman  v.  Baylies,  26  Misc. 
1,  4  Am.  Rep.  422;  Korte  v.  St.  Paul  R.  (N.  Y.)  692,  56  N.  Y.  Suppl.  1070, 
Trust  Co.,  54  Minn.  530,  56  N.  W.  affirming  21  Misc.  523,  47  N.  Y. 
246;  Gordon  v.  Peltzer,  56  Mo.  App.  Suppl.  783. 

599;   Grinnell  v.  Eames,   32   Law  T.  109.  Clifford  v.  Dam,  81  N.  Y.  52, 

R.   (N.  S.)  835.  affirming  44  N.  Y.  Supar.  Ct.  39;  Ir- 

107.  Korte  v.  St.  Paul  Trust  Co.,  vine  v.  Wood,  51  N.  Y.  224,  10  Am. 
54  Minn.  530,  56  N.  W.  246;  Clifford  Rep.  603.  See,  also,  Benjamin  v.  Met- 
v.  Dam,  81  N.  Y.  52,  affirming  44  N.  ropolitan  Street  Ry.  Co.,  133  Mo.  274, 
Y.   Super.   Ct.   391.     As   to  acts  au-  34  S.  W.  590. 

2  SO 


Nuisances  Affecting  Highways.  §  233 

ience  in  no  way  connected  with  the  public  use,  the  person  obtain- 
ing such  permission  must  see  to  it  that  the  street  is  restored  to  its 
original  safety  and  usefulness."  no  Again,  whenever  vaults  under 
a  public  street  interfere  with  any  public  use  of  the  street  they  be- 
come a  nuisance  and  the  fact  that  they  were  constructed  under  a 
permit  from  the  municipal  authorities,  is  held  not  to  protect 
them.111 

§  233.  Buildings  encroaching  on  highway. — A  person  has  no 
right  to  occupy  the  highway  or  any  part  thereof  with  a  private 
building  or  structure  and  any  such  encroachment  will  constitute 
a  public  nuisance  which  may  be  abated.112  And  in  the  absence  of 
statutory  authority  conferred  upon  a  municipality  it  cannot  auth- 
orize the  erection  of  any  structure  which  encroaches  upon  the 
streets.113  So  a  building  erected  on  land  which  has  been  reserved  or 
dedicated  as  a  public  square  is  a  public  nuisance  which  may  be 
abated.114  And  where  a  barn  was  erected  so  close  to  the  sidewalk th at 
its  doors,  which  opened  outward,  obstructed  the  sidewalk  and 
were  a  source  of  danger  to  passersby,  it  was  decided  that  the  struc- 
ture was  a  public  nuisance.115  And  steps  of  a  building  encroaching 

110.  Clifford  v.  Dam,  81  N.  Y.  52,  Tie    municipal   authorities    of 

56,  per  Church,  Ch.   J.,   affirming  44  New  York  City,  though  the  title  to 

N.  Y.  Super.  Ct.  391.  the    streets    is   in   the    city,   have   no 

111.  Patten  v.  New  York  Ele-  authority  to  permit  encroachments 
vated  R.  Co.,  3  Abb.  N.  C.  (N.  Y.)  thereon.  Ackerman  v.  True,  175  N. 
306.  Y.  353,  67  N.  E.  629,  construing  char- 

112.  First  National  Bank  v.  Ty-  ter  of  New  York  (Laws  1897,  vol.  3, 
son,  133  Ala.  459,  32  So.  144,  59  L.  p.  18,  c.  378,  §  49,  subd.  3,  and  Laws 
R.  A.  399,  91  Am.  St.  R.  46;  O'Brien  1901,  vol.  3,  p.  148,  c.  466,  §  35). 

v.  Central  Iron  &  Steel  Co.,  158  Ind.  114.  Rung      v.      Shoneberger,      2 

218,  63  N.  E.  302,  92  Am.  St.  R.  305;  Watts.   (Pa.)   23,  26  Am.  Dec.  95. 

Valparaiso  v.  Bozarth,   153  Ind.  536,  The     fact    that     the    property 

55  N.  E.  439,  47  L.  R.  A.  487 ;   Pettit  was  sold  by  the   city  will   not  re- 

v.    Grand    Junction,    119    Iowa,    352,  lieve  a  building  erected  thereon  of  its 

93  N.  W.  381;   Stetson  v.  Faxon,  19  character    as    a    nuisance    where    the 

Pick.  (Mass.),  147,  31  Am.  Dec.  123;  sale   was    illegal.     Commonwealth    v. 

Wolfe  v.  Pearson,  114  N.  C.  621,  19  Rush,  14  Pa.  186. 

S.  E.  264.  115.  Holloyd  v.  Sheridan,  53  App. 

113.  First  National  Bank  v.  Ty-  Div.  (N.  Y.)  14,  65  N.  Y.  Supp.  442. 
son,  133  Ala.  459,  32  So.  144,  59  L. 

R.  A.  399,  91  Am.  St.  R.  46. 

287 


§  234  Nuisances  Affecting  Highways. 

upon  the  highway  may  be  a  nuisance.116  But  it  has  been  decided 
that  a  bow  window  will  not  be  enjoined  as  a  nuisance  merely  be 
cause  it  projects  over  the  building  line  where  it  is  not  a  substan- 
tial or  material  impediment  or  obstruction  to  the  passage  of  the 
public  along  the  highway.117  And  it  has  also  been  held  that  a  plat- 
form projecting  over  the  sidewalk  from  the  second  story  of  a  build- 
ing and  about  eight  feet  above  the  walk,  for  the  purpose  of  loading 
and  unloading  merchandise  is  not  a  nuisance  per  se.m  Again, 
where  the  owner  of  land  had  marked  off,  on  a  map,  space  for  a  pro- 
posed street  which,  however,  was  never  in  actual  use  or  accepted 
by  the  city  council  as  a  street,  the  court  refused  to  grant  an  injunc- 
tion restraining  the  erection  of  a  building  on  such  space,  it  being 
declared  that  the  irreparable  injury  alleged  consisted  of  the  erec- 
tion of  a  building  on  land  which  would  be  a  street  when  actually 
laid  out,  and  that  no  such,  injury  would  be  sustained,  because,  if 
the  right  to  the  street  should  be  thereafter  established  by  a  judg- 
ment of  the  court,  the  plaintiff  would  be  entitled  to  an  injunction 
requiring  its  removal.119 

§  234.  Buildings  encroaching  on  highway — Special  injury  to 
individual. — An  individual  who,  by  reason  of  a  nuisance  consist- 
ing of  a  building  or  structure  encroaching  on  the  highway,  sus- 
tains a  special  injury  differing  in  kind  from  that  sustained  by  the 
public  in  general,  may  maintain  an  action  to  enjoin  the  continu- 
ance of  the  nuisance  and  may  also  be  entitled  to  damages.  So 
where  an  abutting  owner  was  obstructed  in  bis  easement  of  light, 

116.  Commonwealth  v.  Blaisdell,  ordinance;  Hess  v.  Lancaster,  4  Pa. 
107  Mass.  234;  Hyde  v.  County  of  Dist.  R.  737,  holding  that  an  oriel 
Middlesex,  2  Gray  (Mass.),  234.  window,  fourteen  feet  above  the  side- 
Compare  McDonald  v.  English,  85  walk  and  extending  over  is  a  public 
HI.  232.  nuisance  which  the   city  authorities 

117.  Gray  v.   Baynard,  5  Del.   Ch.  may  remove. 

499;     Jenks  v.  Williams,   115  Mass.  118.  Parmenter  v.  City  of  Marion, 

217.     But   see   Reimer's   Appeal,    100  113  Iowa,  297,  85  N.  W.  90. 
Pa.  St.   182,  45  Am.  Rep.  373,  hold-  119.  Northrup   v.   Simpson,   69  S. 

ing  that  a  bow  window,  sixteen  feet  C.  551,  48  S.  E.  613.    As  to  highways 

above    the    sidewalk    which    extends  not  completed  or  not  lawfully  estab- 

three   feet   and    six  inches   over    the  lished  or  differing  from  plans,  see  § 

building  is  a  public  nuisance  which  216,  herein, 
is  not  even  justified  by  a  oiunicipal 

288 


Nuisances  Affecting  Highways.  §  234 

air  and  view  by  the  erection  of  pillars  of  a  building  on  the  adjoin- 
ing premises  which  encroached  on  the  sidewalk,  it  was  decided 
that  he  was  entitled  to  an  injunction  against  such  nuisance  even 
though  the  fee  to  the  soil  in  the  highway  was  in  the  defendant.120 
And  in  case  of  the  unauthorized  erection  by  a  city  of  buildings  in 
a  street,  an  action  may  be  maintained  by  an  abutting  owner,  who 
is  so  injured,  to  abate  the  nuisance  and  to  recover  damages.121  And 
where  access  of  an  abutting  owner  to  the  business  section  of  the 
city  was  cut  off  by  the  erection  of  a  building  in  the  street  he  was 
held  to  sustain  such  a  special  injury  as  would  entitle  him  to  main- 
tain an  action  for  the  damages  sustained.122  So  where  land  long 
used  as  a  street  and  which  had  not  been  legally  discontinued  as  a 
highway  was  sold  by  the  city  which  claimed  the  fee  thereto,  it  was 
held  that  where  an  owner  of  a  warehouse,  which  was  rendered  less 
desirable  for  business  purposes  on  account  of  travel  being  diverted 
by  such  structure,  was  obliged  to  reduce  the  rent  for  his*  ware- 
house, sustained  a  special  injury  which  entitled  him  to  recover.123 
But  an  individual  who  sustains  no  special  injury  by  the  encroach- 
ment of  steps  upon  the  highway  cannot  maintain  an  action  for 
damages.124  And  where  the  value  of  a  boarding  house  was  dimin- 
ished by  the  erection  of  a  freight  depot  across  the  street,  which 
interfered  with  travel,  it  was  determined  that  irreparable  injury 
was  not  caused  thereby,  but  that  the  injury  being  permanent  and 
there  being  no  question  of  the  insolvency  of  the  defendant,  the 
abatement  of  the  nuisance  would  not  be  ordered  in  an  equitable 
proceeding,  but  that  the  plaintiff  would  be  left  to  his  remedy  at 
law  for  damages  which  would  afford  him  full  remedy.125 

t 

120.  First   National   Bank  v.   Ty-  123.  Stetson   v.   Faxson,   19    Pick! 
son,   133  Ala.  459,   32  So.   144,  59  L.        (Mass.),  147,  31  Am.  Dec.  123. 

R.  A.  399,  91  Am.  St.  R.  46.     As  to  124.  McDonald  v.  English,  85  111. 

structures  obstructing    light    or    air,  232.    As  to  necessity  of  special  injury 

see  §  236,  herein.  in  case  of  a  nuisance  affecting  a  higli- 

121.  Pettit     v.     Grand     Junction,  way,  see  §§  218,  219,  herein. 

119  Iowa,  352,  93  N.  W.  381.  125.  Dennis    v.    Mobile    &    Mont- 

122.  O'Brien    v.    Central    Iron    &      gomery  Ry.  Co.,  137  Ala.  649,  35  So. 
Steel  Co.,  158  Ind.  218,  63  N.  E.  302,       30,  97  Am.  St.  R.  69. 

92  Am.  St.  R.  305.     As  to  injury  to 
access  or  egress,  see  §  222,  herein. 


289 


§  235  Nuisances  Affecting  Highways. 

§  235.  Building  encroaching  on  highway — Right  to  temporary 

and  mandatory  injunction In  the  application  of  the  rules  that 

a  temporary  injunction  will  not  be  granted  unless  the  court  can- 
not, without  it,  do  justice  between  the  parties  by  its  final  judg- 
ment and  that  where  it  works  greater  hardship  to  the  defendant  to 
grant  it  than  it  does  to  the  plaintiff  to  refuse  it,  the  court  will 
refuse  it,  it  has  been  decided  that  an  injunction  requiring  the 
removal  of  steps1,  coping  and  an  area  forming  part  of  a  building  in 
the  course  of  construction,  plans  for  which  had  been  filed  with 
and  approved  by  the  building  department  will  be  refused,  where 
the  alleged  encroachments  are  practically  completed.126  The  court 
said  in  this  case :  "  I  do  not  think  that  the  neglect  of  the  proper 
authorities  of  the  municipal  government,  if  such  neglect  there  was, 
can  deprive  the  public  of  their  rights  in  a  public  thoroughfare, 
and  the  approval  of  the  building  department  of  the  plans  filed,  if 
such  plans  were  in  violation  of  the  law  and  tended  to  deprive  the 
people  of  their  rights  in  the  street  would  not  be  sufficient  to  legalize 
the  encroachments  sought  to  be  removed  in  this  action.  The  en- 
croachments complained  of  are  practically  completed  at  the  pres- 
ent time,  and  the  fact  that  they  have  been  completed  in  full  com- 
pliance with  plans  filed  with  the  building  department  and  ap- 
proved by  it,  may  properly  be  considered  on  this  application  as 
affecting  the  exercise  of  the  discretion  resting  with  the  court. 
Furthermore,  I  do  not  consider  that  the  fact  that  numerous  other 
violations  of  a  similar  character  exist,  as  urged  by  the  defendant, 
affords  any  excuse  for  the  present  violation,  if  it  be  determined  to 
be  one ;  but  conceding  that  the  city  is  entitled  to  the  relief  sought 
in  this  action  upon  the  trial  thereof,  it  does  not  necessarily  follow 
that  it  is  entitled  to  a  preliminary  injunction.  'Such  an  injunc- 
tion should  not  be  granted  .  .  .  unless  without  it  the  court 
could  not,  by  its  final  judgment,  do  justice  between  the  parties.'127 
And  in  this  action  there  is  no  reason  why  by  final  judgment  jus- 
tice cannot  be  done.  If  the  encroachments  complained  of  are  in 
violation  of  law  their  removal  can  be  decreed.  The  defendant  will 
complete  them  at  its  peril.     As  they  are  substantially  completed 

126.  New   York  v.   Knickerbocker  127.  Van  Veghten  v.  Howland,  12 

Trust  Co.,  41  Misc.  R.    (N.  Y.)    17,      Abb.  Pr.  N.  S.   (N.  Y.)  461. 
83  N.  Y.  Supp.  576. 

290 


Nuisances  Affecting  Highways.  §  236 

at  the  present  time  and  some  measure  of  acquiescence  has  been 
given  to  the  work  now  done  by  the  city  authorities,  as  I  have 
indicated,  I  have  determined  not  to  require  either  their  removal  or 
to  restrain  their  completion  at  the  present  time.  When  the  grant- 
ing of  a  temporary  injunction  would  work  a  greater  hardship  to 
the  defendant  than  its  refusal  would  to  the  plaintiff,  the  injunction 
should  be  refused."  128 

§  236.  Structure  obstructing  light  and  air — Right  of  adjoining 
owner. — One  owning  property  abutting  on  a  street  has,  in  addi- 
tion to  the  right  of  travel  or  passage  over  the  street,  a  right  to  the 
enjoyment  of  the  light  and  air  which  the  highway  affords,  and 
any  unlawful  obstruction  upon  or  above  the  highway  which  ma- 
terially interferes  with  or  impairs  this*  right  constitutes  a  nuis- 
ance which  may  be  enjoined.  Thus  it  has  been  s*o  held  where  a 
person  commenced  the  erection  of  a  structure  seventeen  feet  above 
the  ground  and  about  three  stories  in  height  for  the  purpose  of 
connecting  buildings  on  the  opposite  sides  of  a  street  by  which 
there  was  an  obstruction  of  the  light  and  air,  which  the  highway 
afforded  to  plaintiff's  premises.129  The  court  said  in  this  case: 
"  The  abutting  lot  holder  has  the  right  to  the  enjoyment  of  the 
light  and  air  which  the  highway  affords.  To  deprive  him  of  this 
right  would  be  to  impair,  or  it  might  be,  to  destroy  the  comfort, 
enjoyment  or  use  to  be  derived  from  the  easement  to  which  ha  is 
entitled,  and  we  find  this  recognized  by  very  high  authority.130 
.  .  .  The  right  of  the  abutting  owner  to  light  and  air  from  a 
public  highway  as  part  and  parcel  of  the  easement  is  distinctly 
recognized  in  the  authorities  when  such  right  has  been  drawn  in 
question,  and  it  rests  upon  sound  and  obvious  reason.  Recogni- 
tion of  this  right  is  not  all  at  variance  with  the  decisions  of  this  and 
other  courts  of  this  country  in  regard  to  the  doctrine  of  ancient 
lights,  which  hold  that  such  doctrine  is  unsuited  to  conditions 
here.  .  .  .  The  doctrine  of  ancient  lights  that  they  repudiate 
involves  an  abridgement  of  the  use  which  an  owner  can  make  of 

128.  Per  Blanchard,  J.  130.  2  Dillon  on  Mun.  Corp.   (4th 

129.  Townsend  v.  Epstein,  93  Md.       Ed.)  §  712. 
537,  49  Atl.  629,  52  L.  R.  A.  409,  86 

Am.  St.  R.  441. 

f?91 


£  237  Nuisances  Affecting  Highways. 

his  own  property.  It  pnt=?  upon  the  property  of  one  a  servitude  in 
favor  of  another.  This  is  not  the  nature  of  the  right  to  light  and 
air  from  a  highway  which  belongs  to  an  abutting  owner  as  part  of 
the  easement.  This  right  to  light  and  air  is  the  distinct  right  of 
every  abutting  owner.  ...  If  the  public  easement  has  been 
improperly  and  unlawfully  obstructed  by  the  appellee,  then  he  has 
been  guilty  of  creating  a  nuisance;  and  if  the  appellants  have  suf- 
fered therefrom  an  injury  different  in  kind  from  any  beyond 
that  suffered  by  the  community  generally;  or  special  and  particu- 
lar damage  resulting  to  them  by  reason  of  the  nuisance,  then  they 
have  a  right  to  their  private  remedy  for  such  injury."131  In  a  case 
in  Mas'sachusetts,  however,  where  the  plaintiffs  did  not  allege  that 
they  had  any  easement  or  right  of  light  and  air  across  the  front 
of  the  defendant's  house,  it  was  decided  that  they  could  not  have 
any  such  easement  or  right,  except  by  grant  or  agreement  intended 
for  their  benefit,  and  that  in  the  absence  of  any  such  grant  or 
agreement,  neither  the  interference  with  the  plaintiff's  prospect, 
nor  the  general  diminution  of  the  value  of  their  estate,  by  the 
building  of  a  bow  window  extending  over  the  limits  of  the  high- 
way, afforded  any  ground  for  the  interposition  of  a  court  of  equity, 
unless  it  amounted  to  a  nuisance,  which  could  not  be  seriously 
predicated  of  the  injury  alleged  in  the  bill.132 

§  237.  Overhanging  eaves,  pipe  conductors,  etc. — Where  it 
is  provided  by  statute  that  any  building  upon  or  over  any  high- 
way is  a  nuisance,  a  building  which  is  so  erected  that  its  roof  over- 
hangs a  street  is  a  nuisance.133  And  in  the  absence  of  any  statute 
or  ordinance  an  eaves  trough  which  projects  over  the  sidewalk  may 
be  a  nuisance.  So  it  has  been  decided  that  the  maintaining  of  a 
weak,  warped  and  rotten  eaves  trough  twenty  feet  above  and  pro- 
jecting over  the  highway  in  a  city  is  a  menace  to  every  person 
passing  along  and  is  a  nuisance,  and  that  whoever  is  injured  as  a 
result  thereof  has  his  remedy  against  the  persons  responsible  for 
this  condition  of  the  premises.134     And  a  pipe  conductor  of  water 

131.  Per  Jones,  J.  134.  Keeler  v.  Lederer  Realty  Co., 

132.  Jenks  v.  Williams,  115  Mass.  26  R.  I.  524,  59  Atl.  855,  holding, 
217.  also,  that  where  an  eaves  trough  in 

133.  Garland  v.  Towns,  55  N.  H.  such  a  condition  gives  way  beneath 
55,  20  Am.  Rep.  164.  the  weight  of  ice  and  snow  and  falls, 

292 


Nuisances  Affecting  Highways.  §  238 

from  the  roof  to  the  sidewalk  which  interferes  with  the  use  of  the 
highway  will  be  regarded  as  a  nuisance.135  Thus  it  has  been  so 
held  where  a  conductor  by  its  natural  operation  causes'  the  forma- 
tion of  ice  upon  the  sidewalk.136  In  the  case  of  a  building  so  con- 
structed that  ice  and  snow  from  the  roof  will  fall  into  the  street 
the  owner  is  held  responsible  where  he  has  access  to  and  control 
over  the  roof,  though  the  building  is  occupied  by  tenants.137  Where, 
however,  the  building  and  roof  are  in  the  absolute  control  of  the 
tenant,  it  has  been  decided  that  the  owner  is  not  responsible  for  an 
injury  resulting  from  such  a  cause.138 

§  238.  Building  liable  to  fall  into  highway. — A  building  which, 
by  reason  of  inherent  weakness  or  its  dilapidated  condition,  as 
where  it  has  been  injured  by  fire,  is  liable  to  fall  into  the  highway 
and  injure  passers-by  or  persons  lawfully  thereon,  is  a  public  nuis- 
ance and  in  case  special  damage  is  sustained  by  an  individual  as  a 
result  thereof,  he  may  recover  for  such  injury.139  The  owner  of  a 
building  adjoining  a  street  or  highway  is  under  a  legal  obligation 
to  take  reasonable  care  that  it  is  kept  in  proper  condition  so  that  it 
will  not  fall  into  the  street  or  highway  and  injure  persons  lawfully 
there,  and  it  has  been  decided  that  where  an  injury  is  caused  by 
the  building  falling,  the  owner  must  show  that  he  has  exercised 
such  care,  and  that  a  want  of  reasonable  care  will  be  presumed 
from  the  fact  of  the  injury  in  the  absence  of  explanatory  circum- 

injuring  a  person,  the  weak  trough  is  137.  Shipley  v.    Fifty   Associates, 

the    proximate   cause    of  the   injury,  106  Mass.  194,  8  Am.  Rep.  318. 

on  the  ground  that  where  one  of  two  138.  Leonard  v.  Storer,  115  Mass. 

causes  combine  to  produce  an  injury,  86,  15  Am.  Rep.  76. 

one  being  a  natural  cause  for  which  139.  Morris  v.  Barrisford,  9  Misc. 

neither  party  is  liable  and  the  other  R.    (N.  Y.)    14,  29  N.  Y.  Suppl.   17, 

one   for   which   the  defendant   is   re-  59  N.  Y.  St.  R.  698.     See  Nazworthy 

sponsible,  the  latter  will  be  regarded  v.  Sullivan,  55  111.  App.  48,  holding 

as  the  proximate  cause.  that  a  building  on  a  city  street  which 

135.  Hyde  v.  County  of  Middlesex,  is  unfit  for  human  habitations  or 
2  Gray.    (Mass.),  267.  other  lawful  uses,  devoted  to  no  use 

136.  Leahan  v.  Cochran,  178  Mass.  or  purpose,  a  resort  for  tramps  or 
5G6,  60  N.  E.  382,  53  L.  R.  A.  891,  disorderly  persons,  and  which  is  a 
86  Am.  St.  R.  506.  Compare  Wenz-  source  of  serious  discomfort  and  an- 
lich  v.  McCottcr,  87  N.  Y.  122,  41  noyance  to  the  public,  and  of  actual 
Am.  Rep.  358.  danger  to  useful  and  valuable  prop- 

293 


§239 


Nuisances  Affecting  Highways. 


stances.140  So,  in  an  action  by  one  who  had  been  injured  while 
passing  along  the  highway  by  a  falling  building,  it  was  said  by  the 
court:  "  The  law  imposed  upon  the  defendant,  when  it  exercised 
its  lawful  right  of  constructing  a  rolling  mill  upon  the  premises 
adjoining  a  public  highway,  the  duty  towards  the  general  public, 
having  the  right  of  passing  along  or  lawfully  being  in  that  high- 
way, to  so  erect  it  as  to  render  it  reasonably  safe,  and  sufficiently 
strong,  not  only  to  resist  the  strain  upon  the  supporting  timbers  of 
the  roof,  but  strong  enough  to  support  the  roof,  in  all  ordinary 
weather;  and  also  under  such  extraordinary  occurrences  as  were 
likely  to  arise  in  that  locality,  based  upon  past  experience."141 

§  239.  Fences  encroaching  on  highway. — A  fence  which  ob- 
structs a  highway  or  encloses  a  part  thereof  is  a  public  nuisance.142 


erty  of  the  community  within  the 
range  of  its  influence  is  to  be  re- 
garded as  a  public  nuisance.  Smith 
v.  Sprague,  55  Me.  190. 

Such  a  building  is  a  private 
nuisance  where  it  is  liable  to  fall 
and  injure  adjoining  property.  Tim- 
lin v.  Standard  Oil  Co.,  54  Hun  (N. 
Y.),  44,  7  N.  Y.  Suppl.  158,  26  N. 
Y.  St.  R.  42. 

The  board  of  health  is  held, 
in  New  York,  to  have  power  to  re- 
move a  part  of  a  building  which  has 
become  a  source  of  danger  to  people 
on  the  highway  as  a  result  of  fire. 
Smith  v.  Irish,  37  App.  Div.  (N.  Y.) 
220,  55  N.  Y.  Suppl.  837. 

140.  Mullen  v.  St.  John,  57  N.  Y. 
567,  15  Am.  Rep.  530. 

141.  Wilkinson  v.  Detroit  Spring 
&  Steel  Works,  73  Mich.  405,  417,  41 
X.  W.   490,  per  Champlin,  J. 

142.  Demopolis  v.  Webb.  87  Ala. 
659,  6  So.  408;  Harniss  v.  Bulpitt 
(Cal.,  1905),  81  Pac.  1022;  Hubbard 
v.  Deming,  21  Conn.  356;  Savannah, 
Florida  &  W.  R.  Co.  v.  Gill,  IIS 
Ga.    737,   45    S.   E.    623;      Mosher   v. 


Vincent,  39  Iowa,  607;  Houck  v. 
Wachter,  34  Md.  265,  6  Am.  Rep. 
332;  Commonwealth  v.  Tucker,  2 
Pick.  (Mass.)  44;  Neal  v.  Gilmore 
(Mich.,  1905),  104  N.  W.  609; 
WTicks  v.  Thompson,  13  N.  Y.  Supp. 
651,  38  N.  Y.  St.  R.  340;  Common- 
wealth v.  McNaugher  131  Pa.  St.  55, 
18  Atl.  934;  Vogt  v.  Bexar  County. 
16  Tex.  Cix.  App.  567,  42  S.  W.  127 ; 
Chippewa  Falls  v.  Hopkins,  109  Wis. 
611,  85  N.  W.  553.  See  Seidschlag  v. 
Antioch,  207  111.  280,  69  N.  E.  949. 

A  fence  on  a  common  landing 
place  is  a  nuisance.  Commonwealth 
v.  Tucker,  2  Pick.   (Mass.)   44. 

A  fence  across  a  private  way 
in  which  the  public  have  a  right  of 
way  is  a  public  nuisance.  Robinson 
v.  Brown,  182  Mass.  266,  65  N.  E. 
377. 

A  judgment  should  be  suffi- 
ciently definite,  where  it  restrains 
a  defendant  from  encroaching  upon  a 
highway  by  a  fence,  to  inform  him 
what  lands  he  is  forbidden  to  enclose. 
Petersen  v.  Beha,  161  Mo.  513,  62  S. 
W.  462. 


29  t 


Nuisances  Affectixg  Highways.  §  240 

And  where  a  person  has  erected  a  fence  enclosing  a  part  of  the 
highway  a  bill  to  restrain  its  continuance  may  be  brought  by  the 
city,  which  is  not  confined  to  the  remedy  of  ejectment  merely  be- 
cause the  premises  are  in  the  possession  of  the  defendant.143  A 
fence  so  erected  may  also  in  some  cases  be  removed  by  the  proper 
authorities,  but  they  must  not  act  in  a  reckless  or  wanton  man- 
ner.144 But  it  has  been  decided  in  Wisconsin  that  power  given  to 
a  municipality  "  to  abate  nuisances,"  and  "  to  prevent  the  ob- 
struction of  streets,"  confers  no  authority  to  summarily  remove  a 
fence  which  has  encroached  upon  the  highway  for  a  period  of 
about  seventeen  years,  which  was  not  placed  there  intentionally  or 
maliciously,  and  which  does  not  interfere  with  the  public  use  of 
the  street.145  One  who  so  maintains  a  fence  will  be  liable  to  one 
who  sustains  a  special  injury  in  consequence  thereof.146  So,  where 
a  person's*  horse  was  injured  by  a  barb-wire  fence  which  en- 
croached upon  the  highway,  it  was  decided  that  the  one  maintain- 
ing it  was  liable  for  the  injury.147  A  defendant,  however,  is  not 
liable  for  such  a  nuisance,  where  he  acts  merely  as  agent  of  an- 
other, and  he  has  no  title  or  possession  and  makes  no  claim  there- 
to.148 

§  240.  Fences  encroaching  on  highway — Action  by  individual. 
— In  case  a  special  injury  has  been  sustained  by  an  individual  as 

143.  Mt.  Clemens  v.  Mt.  Clemens  147.  Anderson  v.  Young,  66  Hun 
Sanitarium,  127  Mich.  115,  86  N.  W.  (N.  Y.),  240,  21  N.  Y.  Supp.  172,  49 
537.        See,    also,    as    to    this    being       X.  Y.  St.  R.  480. 

proper    remedy    though   defendant    is  A   barbed   wire  fence   along  a 

in  possession.  Texas  v.  Goodnight,  70  railroad    track   is    not   a    nuisance 

Tex.  682,   11   S.  W.   119;   Eau  Claire  per  se,  but  may  or  may  not  be  one, 

v.   Matzke,   86    Wis.   291,    56    N.   W.  according    to    circumstances.        Guil- 

874,  39  Am.  St.  R.  900.  foos  v.  New  York  C.  &  H.  R.  R.   R. 

144.  Crouse  v.  Miller,  19  Pa.  Co.,  69  Hun  (X.  Y.),  593,  23  N.  Y. 
Super.  Ct.  384.  As  to  power  of  mu-  Supp.  925,  53  N.  Y.  St.  R.  538.  See 
nicipality  to  summarily  abate  or  re-  Rehler  v.  Western  New  York  &  Pa. 
move  nuisances,  see  §§  345-352,  R.  R.  Co.,  28  N.  Y.  St.  R.  311,  8  N. 
herein.  Y.  Supp.  286. 

145.  Pauer  v.  Albrecht,  72  Wis.  148.  Cook  v.  Bellack,  109  Wis. 
416,  39  N.  W.  771.                                        321,  85  N.  W.  325. 

146.  Osborn  v.    Union   Ferry   Co., 
53  Barb.   (N.  Y.)   629. 

295 


§  2-10  Nuisances  Affecting  Highways. 

the  result  of  a  nuisance  consisting  of  a  fence  which  encroaches 
upon  the  highway,  he  may  maintain  an  action  therefor.149  So, 
where  one  erected  a  fence  in  front  of  his  property  so  thai  but 
eight  feet  were  left  for  public  travel,  instead  of  nineteen,  as  the 
street  was  laid  out  to  have,  and  an  owner  of  a  lot  fronting  on  the 
same  street  was  peculiarly  affected  in  his  right  of  access  by  this 
obstruction,  it  was  decided  that  he  sustained  a  special  injury,  the 
extent  of  which  was  immaterial,  which  would  entitle  him  to  main- 
tain an  action  to  abate  the  nuisance.100  In  another  case  it  appeared 
that,  at  the  time  a  fence  had  been  erected  by  a  railroad  company 
across  a  highway,  the  plaintiff  had  a  contract  to  haul  five  thousand 
loads  of  dirt  at  fifteen  cents  a  load  from  one  side  of  the  railroad 
to  the  other  and  was*  actually  engaged  in  hauling  them,  and  that 
the  natural  and  most  convenient  route  for  the  contractor  to  take, 
was  over  the  obstructed  road.  Three  loads  could  be  delivered  over 
this  route  in  the  same  time  that  was  required  to  deliver  one  over 
the  route  he  was  compelled  to  take  after  the  fence  was  erected, 
and  the  expense  of  using  the  latter  route  was  about  three  times  as 
much  or  forty  cents  a  load.  The  court  held  in  this  case  that  the 
plaintiff  suffered  a  material  and  special  loss  or  injury,  which 
would  entitle  him  to  recover  damages  therefor.101  Again,  an  ex- 
ception as  to  the  sustaining  of  a  special  injury  being  essential  to 
the  maintenance  of  a  proceeding  to  abate  is  made  in  a  case  in  the 
Federal  courts  where  the  defendant  was  a  receiver  for  a  railroad 
and  had  constructed  a  fence  across  a  highway  where  the  railroad 
crossed  it.  It  was  declared  in  this  case  that  the  principle  relied 
on,  that  no  such  proceeding  could  be  brought  by  an  individual 
whose  injury  was  one  in  common  with  the  public,  could  not  aid  the 
appellant  who  was  a  receiver  of  the  Federal  courts  and  as  such 

149.  Demopolis   v.   Webb,   87   Ala.  Hot   entitled    to    invoke   the   jurisdic- 

659,    6    So.    408;   Savannah,    Florida  tion  of  a  court  of  equity.     Brutsche 

&  W.  R.  Co.  v.  Gill,  118  Ga.  737,  45  v.  Bowers,  122  Iowa,  226,  97  -N.  W. 

S.   E.  623;  Shephard  v.   Barnett,   52  1076. 

Tex.  638.  150.  Crooke  v.  Anderson,  23  Hun 

One  maintaining  a  fence  in  a  (X.  Y. ),  266. 

highway  cannot  bring  a  proceeding  151.  Knowles   v.   Pennsylvania   R. 

to  enjoin  the  maintenance  of  such  a  R.  Co.,  175  Pa.  St.  623,  34  Atl.  974 

fence  by  another,  as   he  thus  comes  52  Am.  St.  R.  860. 
into  court  with  unclean  hands  and  is 

296 


Nuisances  Affecting  Highways.  §  241 

was  required  by  law  to  manage  and  operate  the  railroad  property 
according  to  the  requirements  of  the  valid  laws  of  the  State  in 
which  such  railroad  was  situated.  The  court  said :  "  It  is  of  the 
greatest  importance  that  receivers  of  the  Federal  courts  shall  not 
be  violators  of  the  State  laws ;  and  whenever  a  court  is  made  to 
know,  in  any  proper  way,  that  its  receiver  is  violating  the  law  of 
the  State  in  which  is  the  property  of  which  he  has  charge,  the 
court  must  sua  spoute  direct  him  to  cease  further  violation.  We 
cannot,  therefore,  on  any  technical  rules  of  procedure,  however 
well  established  as  between  private  litigants,  suspend  this  appeal 
and  reverse  the  order  below,  if  it  appears  that  the  receiver's  act, 
enjoined  by  order  of  the  court  appealed  from,  was  a  violation  of 
public  right."  152 

§  24:1.  Statutory  penalty  for  encroachment  or  obstruction — 
Fences. — Where  the  statute  provides  a  penalty  for  an  "  obstruc- 
tion "  of  a  highway  it  has  been  decided  that  it  is  not  recoverable 
in  the  case  of  a  fence  which  is  merely  an  encroachment  upon  the 
highway,  but  which  does  not  hinder,  impede,  or  render  dangerous 
the  travel  thereon.103  And  where  it  is  a  prerequisite  to  any  lia- 
bility for  the  penalty  provided  by  statute  for  neglect  or  refusal  to 
remove  an  obstruction  or  encroachment  upon  a  highway,  that  the 
highway  commissioner  shall  give  notice  to  the  person  responsible, 
specifying  the  "extent  and  location  of  such  obstruction  or  en- 
croachment," the  notice  must  contain  a  precise  and  certain  de- 
scription of  the  particulars  of  the  encroachment  to  such  an  extent 
at  least  as  will  enable  the  party  upon  whom  it  is  served  to  go  upon 
the  ground  and  fix  the  place  and  extent  of  the  encroachment  with 
certainty.154 

152.  Felton  v.  Ackerman,  61  Fed.  "That  said  fence  or  fences  encroches 
225,  228,  9  C.  C.  A.  457,  per  Taft,  upon  said  highway  alom?  the  whole 
C.  J.  of  your  said  land  to  the  westerly  line 

153.  State  v.  Pomeroy  73  Wis.  thereof  at  different  distances,  rang- 
664,  41  N.  W.  726.  ing  from  seven  feet  four  inches  to  fif- 

154.  Sardinia  v.  Butler,  149  N.  Y.  teen  feet  (as  more  particularly  ap- 
505,  44  N.  E.  179,  holding  that  a  pears  by  reference  to  a  map  now  in 
notice  was  insufficient  which  com-  my  possession  and  which  you  are  at 
plained  of  a  certain  fence  as  en-  liberty  to  inspect  at  any  time),  and 
croaching  on  the  highway  and  stated  that  all  the  narrow  strip  or  piece  of 

297 


242 


Xuisances  Affecting  Highways. 


§  242.  Use  of  highway  by  railroad — Where  legalized. — A 
railroad  which  has  been  constructed  and  is  operated  along  a  high- 
way under  competent  authority  is  not  a  nuisance  where  it  is 
operated  and  maintained  in  a  proper  and  careful  manner.155  One 
to  whom  such  a  right  is  granted  must,  however,  comply  with  its 
charter  and  any  ordinances  and  statutory  provisions  controlling 
in  such  cases,  and  can  only  act  within  the  limits  of  the  power  con- 
ferred.156    And  if  a  street  is  used  by  a.  railroad  company  beyond 


land  which  lies  under  said  fence  or 
fences,  and  between  said  fence  or 
fences  and  the  northerly  line  of  said 
highway,  is  a  part  of  the  public  high- 
way aforesaid."  See,  also,  as  sup- 
porting text,  Spicer  v.  Slade,  9  Johns. 
(N.  Y.)  359;  Mott  v.  Comm'rs  of 
Highways  of  Rush  2  Hill  (N.  Y.), 
472;  Cook  v.  Covill,  18  Hun  (N.  Y.), 
283. 

155.  Mobile  v.  Louisville  &  N. 
R.  Co.,  84  Ala.  119;  Perry  v.  New 
Orleans  &  M.  &  C.  R.  Co.,  55  Ala. 
413,  28  Am.  Rep.  640;  Denver  v. 
Denver  &  S.  F.  R.  Co.,  17  Colo.  583; 
Colorado  Central  R.  Co.  v.  Mollaudin, 
4  Colo.  154;  Murphy  v.  Chicago,  29 
111.  279,  81  Am.  Dec.  307;  Moses  v. 
Pittsburgh,  Ft.  W.  &  C.  R.  Co.,  21 
111.  516;  State  v.  Louisville,  N.  A.  & 
C.  R.  Co.,  86  Ind.  114;  Milburn  v. 
Cedar  Rapids,  12  Iowa.  246;  Louis- 
ville &  N.  R.  Co.  v.  Orr,  12  Ky.  Law 
Rep.  15  S.  W.  8;  Lexington  &  0.  R. 
Co.  v.  Applegate,  8  Dana  (Ky.),  298, 
33  Am.  Dec.  497 ;  Poole  v.  Falls  Road 
Elec.  R.  Co.,  88  Md.  533.  41  Atl. 
1069;  Grand  Rapids  &  I.  R.  Co.  v. 
Heisel,  38  Mich.  62,  31  Am.  Rep. 
306;  Randle  v.  Pacific  R.  Co.,  65  Mo. 
325 ;  Hinchman  v.  Paterson  Horse  R. 
Co.,  17  N.  J.  Eq.  75,  86  Am.  Dec. 
252;  Davis  v.  New  York,  14  N.  Y. 
506,  67  Am.  Dec.  186;  Hodginson  v. 
Long  Island  R.  Co.,  4  Edw.  Ch.    (N. 


Y.)  411;  Brooklyn  City  R.  Co.  v. 
Furey,  4  Abb.  Pr.  N.  S.  (N.  Y.)  364; 
Fletcher  v.  Auburn  &  S.  R.  Co.,  25 
Wend.  (N.  Y.)  463;  Hentz  v.  Long 
Island  R.  Co.,  13  Barb.  (N.  Y.)  646; 
Hamilton  v.  Hudson  River  &  H.  R. 
Co.,  9  Paige  (N.  Y.),  171;  Ridley  v. 
Seaboard  &  R.  R.  Co.,  118  N.  C.  996, 
24  S.  E.  730,  32  L.  R.  A.  708;  Parrot 
v.  Cincinnati,  H.  &  D.  R.  Co.,  10  Ohio 
St.  624;  Northern  C.  R.  Co.  v.  Com- 
monwealth, 90  Pa.  300.  See  chap.  6, 
herein,  as  to  legalized  or  statutory 
nuisances   generally. 

Evidence  is  admissible  that  a 
city  ordinance  authorized  the  con- 
struction and  operation  of  the  road 
complained  of,  and  that  the  defend- 
ant has  complied  with  such  ordi- 
nance where  the  charter  of  the  city 
gave  it  power  to  direct  and  control 
the  location  of  railroad  tracks 
thereon.  Colorado  Central  R.  Co.  v. 
Mollaudin,  4  Colo.   154. 

A  defendant  who  claims  the 
right  under  its  charter  to  do  the 
acts  complained  of  as  a  nuisance 
must  show  such  right  by  plea  or  oth- 
erwise. Parrot  v.  Cincinnati,  3  Ohio 
St.  330. 

156.  Metropolitan  City  R.  Co.  v. 
Chicago,  96  Hi.  620;  Commonwealth 
v.  Erie  &  N.  E.  R.  Co.,  27  Pa.  339,  67 
Am.  Dec.  471. 

Operating  a  street  car  line  by 


298 


Nuisances  Affecting  Highways. 


243 


what  is  necessary  for  the  proper  operation  of  its  road,  a  public 
nuisance  will  be  thereby  created,  for  which  the  company  will  be 
liable  to  indictment,157  or  in  case  an  individual  sustains  a  special 
injury  in  consequence  thereof  it  will  be  liable  in  damages  to  him 
for  such  injury.158 

§  243.  Same  subject — Duty  in  construction  of  railroad. — A 
railroad  upon  or  across  a  highway,  though  legalized,  must  be  so 
constructed  as  not  to  impair  the  usefulness  of  such  highway  when 
no  necessity  therefor  exists.  If  an  obstruction  is  unnecessarily 
created  or  the  usefulness  or  safety  of  a  street  is  unnecessarily  im- 
paired, a  nuisance  will  be  created.159  So,  though  a  railroad  com- 
pany may  be  authorized  to  straighten  its  road,  change  its  grade, 
lay  additional  tracks  and  sidings,  subject,  however,  to  the  limita- 
tion that  it  shall  keep  the  highways  which  their  tracks  may  cross 
fit  for  safe  and  convenient  use  by  the  public,  it  will  not  be  per- 
mitted to  so  construct  its  tracks  as  to  effectually  destroy  the  use 
of  a  highway  for  its  ordinary  purposes,  and  such  a  construction 
and  use  will  be  enjoined.160     And  where  a  railroad  is  constructed 


underground  cable  where  the  char- 
ter confers  authority  to  operate  by 
animal  power  has  been  held,  however, 
not  to  constitute  a  nuisance  and  the 
company  is  held  not  liable  to  an  indi- 
vidual for  such  an  abuse  of  its  cor- 
porate powers.  Chicago  General 
Elec.  Ry.  Co.  v.  Chicago  City  Ry.  Co., 
186  111.  219,  57  N.  E.  822,  affirming 
87  111.  App.  17. 

Where  authority  to  lay  tracks 
in  the  middle  of  the  street  is  con- 
ferred, a  nuisance  is  not  created  by 
the  fact  that  a  track  diverged 
slightly  from  the  location  prescribed 
for  the  purpose  of  entering  private 
property  where  it  does  not  appear 
that  it  interferes  with  public  travel. 
Commonwealth  v.  Wilkes  Barre  &  K. 
S.  R.  Co.,  127  Pa.  278,  17  Atl.  996. 

A  departure  in  a  mere  detail 
of  construction  by  a  street  railway 
company    where    the    road    has    been 


built  in  substantial  accord  with  plans 
approved  by  the  proper  authorities 
will  not  render  the  same  a  public 
nuisance.  Thus  it  has  been  so  de- 
clared where  a  cross  over  switch  was 
not  laid  at  the  exact  location  desig- 
nated. Howard  v.  Hartford  Street 
Ry.  Co.,  76  Conn.  174,  56  Atl.  506. 

157.  Mason  v.  Ohio  River  R.  Co., 
51  W.  Va.  183,  41  S.  E.  418.  See 
State  v.  Louisville  &  N.  R.  Co.,  91 
Tenn.  445,  19  S.  VV.  229. 

158.  Harman  v.  Louisville,  N.  O. 
&  T.  R.  Co.,  87  Tenn.  614,  11  S.  VV. 
703. 

159.  Windsor  v.  Delaware  &  H. 
Canal  Co.,  92  Hun  (N.  Y.),  127,  36 
N.  Y.  Supp.  863.  As  to  nuisance 
caused  by  railroad  by  manner  of  con- 
struction or  use,  see  §  75,  herein. 

160.  Newark  &  Delaware,  Lack.  & 
VV.  R.  R.  Co.,  42  N.  J.  Eq.  196,  7  Atl. 
123. 


299 


§  244  Nuisances  Affecting  Highways. 

in  a  highway  the  obligation  rests  upon  the  one  constructing  it  to 
restore  the  highway  to  its  former  state  of  usefulness  and  safety 
so  far  as  is  possible,  having  in  view  the  necessities  of  the  lawful 
operation  of  the  road.  This  duty  is  frequently  imposed  by  statute 
or  bv  the  terms  of  the  grant  to  construct  and  maintain  the  road, 
but  in  the  absence  of  such  an  express  provision  the  one  construct- 
ing the  road  is  under  the  obligation  to  so  restore  it,  and  a  failure 
to  do  so  will  create  a  nuisance.161  So,  where  a  railroad  company 
was,  by  its  license,  to  lay  its  tracks  upon  the  highway,  required  to 
restore  such  highway  to  its  former  state  of  usefulness,  or  so  near 
thereto  that  it  should  not  unnecessarily  impair  such  usefulness,  it 
was*  held  to  be  liable  in  damages  for  a  nuisance  maintained  by  it 
in  the  form  of  an  embankment  upon  a  street  in  front  of  abutting 
premises  by  which  access  thereto  was  materially  impaired.162  But 
it  has  been  decided  that  the  failure  alone  of  a  railroad  company 
to  properly  ballast  its  roadbed,  where  sufficient  space  is  left  in  the 
street  for  ordinary  vehicles  and  teams-  to  pass  in  front  of  abutting 
property,  will  not  authorize  a  recovery  by  an  abutting  owner  for 
damages-  alleged  to  have  been  sustained  by  the  destruction  of  his 
right  of  ingress  and  egress,  where  there  is  no  evidence  to  show  the 
terms  and  conditions  upon  which  the  privilege  to  build  such  rail- 
road was  conferred  by  the  city  so  as  to  enable  the  court  to  say 
there  was  a  departure  therefrom.163 

§  244.  Construction  of  New  York  city  subway — Acts  author- 
izing use  of  streets  construed. — In  the  construction  of  the  New 
York  city  subway  the  rapid  transit  commissioners  were  author- 
ized by  the  Legislature  to  acquire  the  use  of  streets,  avenues, 
squares,  or  public  parks  to  facilitate  such  construction.164     They 

161.  Kvne  v.  Wilmington  &  W.  R.  Oshkosh   v.    Milwaukee   &    L.    W.    R. 

Co.,    8    Houst.     (Del.)     185,    14    Atl.  Co.,  74  Wis.  534,  43  X.  W.  489. 
922-   Commonwealth    v.    Louisville    ot  162.  Coats    v.    Atchison,    T.    &   S 

X.  R.  Co..  22  Ky.  Law  Rep.  572.  58  F.  Ry.  Co.   (Cal.3  1905  T,  82  Pac.  640 
P.  W.  47S.  702:  Delaware,  L.  &  W.  R.  163.  Wichita  &  C.  R.  Co.  v.  Smith 

Co.  v.  Buffalo,  4  App.  Div.    (X.  Y.)  45  Kan.  2G4.  25  Pac.  623.       As  to  in 

562,  38  X.  Y.   Suppl.   510,   73   X.    Y.  jury   to  access   or   egress,   see   §   222 

St.  R.  600;   State  v.  Monongahela  R.  herein. 

R.  Co.,  37  W.  Va.  108,  16  S.  E.  519;  164.  Rapid     Transit     Act.      Laws 

1892,  c.  556,  §  5. 

300 


Nuisances  Affecting  Highways.  §  246 

were  also  authorized  to  acquire  any  interest  in  real  estate  and 
privileges  thereof  of  abutting  owners  necessary  for  the  purpose  of 
constructing  and  operating  such  road.165  Claiming  to  act  under 
these  provisions,  about  two-thirds  of  a  paved  thoroughfare  in 
front  of  Union  Square  was  enclosed  and  used  for  the  storage  of 
tools  and  machinery  and  for  the  purpose  of  generating  compressed 
air  power  for  use  along  the  entire  line  of  work.  In  consequence 
of  such  encroachment  upon  the  street  a  serious  loss  was  caused  to 
certain  hotel  proprietors  in  the  immediate  neighborhood,  by  whom 
an  action  was  brought  to  recover  damages  and  to  enjoin  the  con- 
tinuance of  such  structures,  on  the  ground  that  it  constituted  a 
nuisance.  The  court  on  appeal  sustained  the  contention  of  the 
plaintiffs  and  held  that  they  were  entitled  to  compensation  for  the 
loss  sustained,  it  being  declared  that  the  erection  of  such  structure 
in  that  place  was  not  authorized  by  the  acts  referred  to,  that  it  was 
neither  necessary  nor  reasonable,  and  that  it  could  be  located  else- 
where or  subdivided  into  smaller  plants.166 

§  245.  Railroads  in  parks. — A  railroad  unlawfully  constructed 
in  a  park,  and  which  obstructs  passage  in  and  about  such  park,  or 
interferes  with  its  use  in  the  ordinary  manner,  is  a  nuisance.  But 
where  a  city  which  held  the  title  to  a  park  for  the  use  and  benefit 
of  the  public  granted  a  right  of  way  to  a  railroad  for  a  track  over 
a  remote  portion  of  the  park  it  was  decided  that  an  action  could 
not  be  maintained  by  an  individual  in  behalf  of  the  people  to 
abate  and  enjoin  the  track  as  a  nuisance,  it  appearing  that  passage 
over  and  *he  ordinary  use  of  the  park  were  in  no  way  interfered 
with.167 

§    246.  Unauthorized   construction   of  railroad   in   streets. — 

Streets  and  highways  cannot  be  obstructed  or  encroached  upon  by 

165.  N.  Y.  Laws  1896,  c.  729,  §  167.  People  v.  Park  &  O.  R.  Co., 
39.  76   Cal.   156,    18   Pac.   141.     Compare 

166.  Bates  v.  Holbrook,  171  N.  Y.  Kings  County  Sup'rs  v.  Sea  View  Ry. 
460,  64  N.  E.  181,  affirming  67  App.  Co.,  23  Hun  (N.  Y.),  180.  As  to  pub- 
Div.  (N.  Y.)  25,  73  N.  Y.  Suppl.  417.  lie  property,  squares  and  lands,  see  § 
As  to    nuisance   caused   by   structure  213,  herein. 

authorized  by  statute  where  locality 
not  designated,  see  §   76,  herein. 

301 


§216 


Nuisances  Affecting  Highways. 


a  railroad  without  lawful  authorization  for  such  act,  and  where  a 
railroad  is  constructed  upon  a  street  without  such  authority  it  will 
constitute  a  public  nuisance.168  And  in  such  a  case  one  showing  a 
special  injury  by  reason  thereof  will  be  entitled  to  bring  an  action 
to  enjoin  the  same.lb9  But  in  the  absence  of  such  an  injury  an 
abutting  owner  cannot  maintain  such  an  action,  the  proper  remedy 
then  being  by  a  suit  in  behalf  of  the  public.170 


168.  Denver  &  S.  Ry.  Co.  v.  Den- 
ver City  Ry.  Co.,  2  Colo.  673;  Ham- 
den  v.  New  HaveD  &  N.  Co.,  27 
Conn.  158;  Johnson  v.  Baltimore  & 
Potomac  R.  R.  Co.,  4  App.  D.  C.  491, 
22  Wash.  L.  R.  781;  Metropolitan 
City  Ry.  Co.  v.  Chicago,  96  111.  620; 
Commonwealth  v.  Old  Colony  &  F.  R. 
R.  Co.,  14  Gray  (Mass.'),  93;  Com- 
monwealth  v.  Vermont  &  M.  R.  Co., 
4  Gray  (Mass.),  22;  Burlington  v. 
Pennsylvania  R.  Co.,  56  N.  J.  Eq. 
259,  38  Atl.  849;  Philadelphia  v. 
River  Front  R.  Co.,  173  Pa.  St.  334, 
34  Atl.  60;  Larimer  &  L.  Street 
R.  Co.  v.  Larimer  St.  R.  Co., 
137  Pa.  533,  20  Atl.  507;  Ap- 
peal of  Stewart,  56  Pa.  St. 
413;  Commonwealth  v.  Erie  &  M.  E. 
R.  Co.,  27  Pa.  339,  67  Am.  Dec.  471; 
Faust  v.  Passenger  Ry.  Co.,  3  Phila. 
(Pa.)  164;  Philadelphia  v.  Citizens' 
Passenger  R.  Co.,  10  Pa.  Co.  Ct.  16. 

The  public  authorities  may 
abate  such  a  nuisance.  Johnson  v. 
Baltimore  &  Potomac  R.  R.  Co.,  4 
App.  D.  C.  491,  22  Wash.  L.  R.  781. 
Compare  Spokane  Street  R.  Co.  V. 
Spokane  Falls,  6  Wash.  521,  33  Pac. 
1072. 

'Where  by  agreement  with  a 
turnpike  company  a  horse  rail- 
road track  was  about  to  be  con- 
structed on  the  turnpike  by  a  corpo- 
ration whose  charter  provided  that 
it  was  "  void  so  far  as  relates  to  the 


right  to  construct  the  said  road  in 
any  town,  until  the  act  has  been  ac- 
cepted by  the  selectmen,"  it  was  de- 
cided that  the  court  would  not  re- 
strain, as  a  nuisance,  the  construc- 
tion of  such  track  in  a  town  through 
which  the  turnpike  road  ran,  as  the 
consent  of  the  selectmen  was  not 
necessary  and  there  was  nothing  to 
show  that  travel  would  be  obstructed. 
District  Attorney  v.  Lynn  &  B.  R. 
Co.,   16  Gray    (Mass.),  242. 

169.  Glaessner  v.  Anheuser-Busch 
Brew.  Assoc,  100  Mo.  508,  13  S.  W. 
707. 

170.  Reynolds  v.  Presidio  &  F.  R. 
Co.  (Cal.,  1905),  81  Pac.  1118;  Gar- 
nett  v.  Jacksonville  St.  A.  &  H.  R. 
Ry.  Co.,  20  Fla.  889;  Anthony  Shoe 
Co.  v.  West  Jersey  R.  Co.,  57  N.  J. 
Eq.  607,  42  Atl.  279;  Borden  v.  At- 
lantic Highlands  R.  B.  &  L.  B.  E.  R. 
Co.   (N.  J.  Ch.),  33  Atl.  276. 

Where  a  hotel  and  wharf  for 
a  steamboat  line  were  situated 
about  six  miles  from  where  the  occu- 
pation of  a  highway  leading  thereto 
commenced  and  the  occupation  was 
such  as  to  practically  destroy  the 
highway  for  the  purposes  of  travel 
and  people  were  thereby  prevented 
to  a  great  extent  from  coming  to  the 
hotel  and  wharf  it  was,  however,  de- 
cided that  the  owner  thereof  did  not 
sustain  such  a  special  injury  as 
would  entitle  him  to  maintain  an  ac- 


302 


Nuisances  Affecting  Highways.  §  247 

§  247.  Side  tracks  and  switches. — The  use  of  a  street  by  a 
railroad  company  for  the  purpose  of  laying  a  side  track  or  a 
switch  will  not  be  a  nuisance  where  there  has  been  the  required 
lawful  authorization  for  such  construction.171    So,  where  a  railroad 
company  was  authorized  by  law  to  lay  necessary  switches   and 
tarn-outs,   and  evidence  was  introduced  showing  that  a  certain 
turn-out  was  necessary,  it  was  decided  that,  in  the  absence  of  evi- 
dence to  the  contrary,  the  side  track  and  turn-out  complained  of 
were  not  a  private  nuisance.     In  such  oases  the  burden  rests  on  a 
person  claiming  a  nuisance  to  prove  it.172    And  where  a.  turn-out  is 
lawfully  constructed,  a  car  standing  thereon  a  reasonable  time, 
waiting  for  another  car  to  pass,  is  not  such  an  obstruction  to  travel 
as  will  render  it  a  nuisance.173     And  it  has  been  decided  that  a 
nuisance  is  not  created  by  the  fact  that  more  railroad  tracks  are 
added  in  a  street  or  by  an  increased  use  of  tracks  beyond  what  may 
have  been  originally  thought  to  be  probable,  as  the  natural  develop- 
ment of  the  locality  and  the  change  in  conditions  may  make  such 
enlarged  use  necessary  for  the  public  good  and  such  changed  condi- 
tions are  to  be  expected  and  should  be  taken  into  contemplation.174 
But  where  there  is  no  lawful  authority  for  the  construction  of  a 
side  track  or  switch  upon  a  street,  an  abutting  owner  who  sustains 
an  injury  to  his  right  of  access  or  egress,  or  some  other  special 
damages,  may  be  entitled  to  an  injunction  restraining  the  nuis- 
ance.175   And  although  the  right  to  construct  a  side  track  may  be 
granted  by  the  proper  authority,  it  must  be  exercised  with  proper 

tion    to    abate    the    nuisance.       Old  173.  Ford  v.  Charles  Warner  Co., 

Forge  Co.  v.  Webb.  57  App.  Div.   (N.  1  Marv.    (Del.)   88,  37  Atl.  39. 

Y.)    636,  68  N.  Y.    Suppl.    1145,   af-  174.  Oklahoma  City  &   T.   R.  Co. 

firming  65  N.  Y.  Suppl.  503,  31  Misc.  v.  Dunham,  (Tex.  C.  A.,  1905),  88  S. 

316.  W.  849. 

171.  Burrus  v.  Columbus,  105  Ga.  175.  Southern  Cotton  Oil  Co.  v. 
42,  31  S.  E.  124,  holding,  however,  Bull,  116  Ga.  776,  43  S.  E.  52;  Gus- 
that  authority  to  construct  a  side  tafson  v.  Hamm,  56  Minn.  334,  57 
track  confers  no  right  to  take  or  N.  W.  1054,  22  L.  R.  A.  565;  Knapp 
damage  private  property  without  &  Co.  v.  St.  Louis  Transfer  Co.,  126 
compensation.  See  Stockdale  v.  Rio  Mo.  26,  28  S.  W.  627.  As  to  injury 
Grande  Western  R.  Co.  (Utah,  1904),  to  access  or  egress,  see  §  222,  herein. 
77  Pac.  849.  An    elevated    railroad     switch. 

172.  Carson  v.  Central  R.  Co.,  35  over  a  street  may  be  restrained  at 
Cal.  325.  the  suit  of  an  abutting  owner.    Wald- 

303 


§  248  Nuisances  Affecting  Highways. 

regard  to  the  rights  of  the  public  of  the  adjacent  property  holders. 
So,  it  has  been  decided  that  though  the  laying  of  such  a  track  has 
been  authorized  by  a  city  ordinance,  yet  it  may  be  enjoined  as  a 
private  nuisance  at  the  suit  of  an  abutting  owner,  where  it  has 
been  so  constructed  as  to  materially  interfere  with  his  right  of 
access.176 

§  248.  Cars  standing  at  crossings  or  on  streets. — While  a  rail- 
way car  is  not  of  itself  such  a  thing  that  its  presence  in  a  city 
street  is  per  se  a  nuisance,177  yet  it  may  become  one.     A  railroad 
company  cannot  make  an  unreasonable  use  of  the  highway  nor 
convert  such  a  thoroughfare  into  a  yard  for  the  storing  or  deposit 
of  cars,  to  the  injury  of  adjoining  owners,178  nor  permit  them  to 
stand  for  an  unreasonable  or  unnecessary  length  of  time  in  front 
of  a  person's  premises.179    And  where  a  railroad  intersects  a.  street, 
if  cars  are  allowed  to  remain  standing  upon  the  crossing  for  any 
unreasonable  period,  so  as  to  be  an  obstruction  to  travel,  a  public 
nuisance  will  be  thereby  created.180    As  to  the  right  of  a  railroad 
company  to  obstruct  the  highway  at  crossings  by  leaving  cars 
standing,  the  following  words  of  the  court,  in  a  Kentucky  case  are 
pertinent:  "  To  secure  the  reasonable  and  proper  use  and  enjoy- 
ment of  the  public  road  by  the  public,  and  of  the  railroad  by  its 
owners,  each  must  be  required  to  observe  the  maxim  of  law  that 
every  person  is  restricted  against  using  his  property  to  the  preju- 
dice of  others.     And  as  it  is  plain  that  the  railroad  and  the  public 
road  cannot  at  the  crossing-place  both  be  occupied  and  used  at  the 

muller  v.   Seaside  &  Brooklyn   Elev.  179.  Angel     v.     Pennsylvania     R. 

R.  Co.,  40  App.  Div.    (N.  Y.)   242,  58  Co.,  38  N.  J.  Eq.  58. 

N.  Y.  Supp.   7.  180.  Cincinnati  R.  R.  Co.  v.  Cora- 

176.  Knapp  &  Co.  v.  St.  Louis  monwealth,  80  Ky.  137;  Illinois  C. 
Transfer  Co.,  126  Mo.  26,  28  S.  W.  R.  Co.  v.  Commonwealth,  20  Ky.  Law 
627.     As  to  nuisance  caused  by  rail-  R.  115,  45  S.  W.  367. 

roads  by   manner  of  construction   or  A  liability  for  the  penalty  pro- 
use,  see  §  75,  herein.  vided  for  by  statute  in  case  of  such 

177.  Atchison,  T.  &  S.  F.  R.  Co.  an  obstruction  is  held  not  to  be  in- 
v.  Morris,  64  Kan.  411,  67  Pac.  837,  curred  where  a  car  is  so  left  as  to 
11  Am.  Neg.  Rep.  215.  slightly  project  over  a  crossing  where 

178.  Mahady  v.  Bushwick  R.  R.  the  use  of  the  highway  by  the  public 
Co    91  N  Y    148.  *9  n°t   interfered  with.       Illinois  C. 

R.  Co.  v.  People,  59  111.  App.  256. 

304 


Nuisances  Affecting  Highways.  §  249 

same  time,  even  partially,  the  law,  for  manifest  reasons,  makes  it 
the  duty  of  persons  traveling  upon  the  public  road  to  stop  until  an 
approaching  train  or  car  passes  that  point.     But  the  public,  on  the 
other  hand,  is  entitled  to  the  unobstructed  use  of  the  public  road  at 
the  crossing-place  when  it  is  not  actually  occupied  or  about  to  be 
occupied  by  moving  trains  or  cars.  To  concede  to  the  owners  of  rail- 
ways the  right  to  stop  their  trains  or  cars  at  the  place  the  publio 
road  crosses  the  railroad  would  not  merely  render  the  latter  in- 
convenient and  dangerous,  but,  in  many  cases,  useless.     Not  even 
business  necessities  will  authorize  the  owners  of  railroads  to  thus 
obstruct  the  public  roads."  m    An  obstruction,  however,  of  a  high- 
way by  cars  standing  therein  will  be  relieved  of  its  character  as  a 
nuisance  where  it  appears  that  the  obstruction  was  a  necessary  and 
exceptional  one,  caused  by  circumstances  over  which  the  company 
had  no  control.     So,  where,  as  a  result  of  an  unavoidable  accident, 
a  train  was  delayed  and  an  excursion  train  was  held  at  the  station 
for  thirty-five  minutes,  awaiting  its  arrival  and  it  appeared  that 
the  excursion  train  could  not  have  been  safely  uncoupled  to  pre- 
vent the  obstruction  complained  of,  it  was  decided  that  the  com- 
pany was  not  guilty  of  maintaning  a  public  nuisance.    And  it  was 
also  decided  in  this  case  that  the  company  was  not  liable  for  a 
nuisance  in  the  obstruction  of  a  highway  resulting  from  the  disor- 
derly conduct  of  passengers  who  left  the  coaches  and  went  upon  the 
highway  during  such  delay.182 

§  249.  Using  street  for  terminal  purposes  of  railroad  switch- 
ing cars,  etc. — The  use  of  a  street,  over  which  a  railroad  has  only 
a  right  of  way,  for  the  purposes  of  a  terminal  yard,  will  consti- 
tute a  nuisance  for  which  the  company  will  be  liable  and  which 
may  be  enjoined.183  And  a  railroad  company,  whose  right  in  a 
street  is  so  restricted  cannot  make  use  of  such  street  for  the  pur- 
pose of  loading  or  unloading  its  cars,  or  for  the  shifting  of  its  cars, 
or  storing  them,  or  for  the  making  up  of  its  trains.184    So,  where  a 

181.  Cincinnati  Railroad  Co.  v.  183.  Pennsylvania  R.  R.  Co.  v. 
Commonwealth,  8  Ky.  137,  139,  per  Angel,  41  N.  J.  Eq.  316,  7  Atl.  432, 
Chief  Justice  Lewis.  56  Am.  Rep.  1. 

182.  Louisville  &  N.  R.  Co.  v.  184.  Glide  v.  Baltimore  &  O.  R. 
Commonwealth  (Ky.  Super.  Ct.),  16  Co.,  19  D.  C.  412,  19  Wash.  L.  R.  2; 
Ky.  Law  Rep.  347.  Kavanaugh  v.  Mobile  &  G.  R.  Co.,  78 

305 


§250 


Xuisances  Affecting  Highways. 


railroad  company,  without  any  right  or  authority,  constructed  a 
round-house  and  turn-table  on  public  lands,  such  structures  were 
held  to  be  a  nuisance.180  In  such  cases*  one  who  sustains  a  special 
injury  may  maintain  an  action  to  abate  the  nuisance.186  Where, 
however,  it  appears  that  the  use  complained  of  is  not  habitual, 
but  only  an  occasional  one,  it  has  been  decided  that  the  existence 
of  a  nuisance  is  not  sufficiently  shown  to  warrant  a  court  in  en- 
joining the  same.187 


§  250.  Railroad  abutments  and  bridges. — A  railroad  company 
has  no  right  to  construct  any  bridge  over  a  highway  or  any  abut- 
ments or  embankments  or  approaches  to  bridges  or  structures, 
which  encroach  upon  or  obstruct  the  highway,  except  it  acts  under 
lawful  authority  in  so  doing.  If  the  company  cannot  show  a 
lawful  authorization  for  its  act,  the  encroachment  will  be.  regarded 
as  a  nuisance.188     Such  structure  may,  however,  be  relieved  of  its 


Ga.  803,  4  S.  E.  113;  Black  v.  Brook- 
lyn Heights  R.  R.  Co.,  32  App.  Div. 
(N.  Y.)  468,  53  N.  Y.  Suppl.  312. 
Compare  Beideman  v.  Atlantic  City 
R.  Co.   (N.  J.),  19  Atl.  731. 

185.  Piatt  v.  Chicago,  B.  &  Q.  R. 
Co.,  74  Iowa,  127,  37  N.  W.  107.  As 
to  public  property,  squares  and  lands, 
see  §  213,  herein. 

186.  Piatt  v.  Chicago,  B.  &  Q.  R. 
Co.,  74  Iowa,  127,  37  N.  W.  107. 
Compare  Johnson  v.  Baltimore  &  P. 
R.  Co.,  4  App.  D.  C.  491,  22  Wash. 
L.  R.  781. 

187.  Ridge  v.  Pennsylvania  R 
Co.,  58  N.  J.  Eq.  172,  43  Atl.  275. 
See,  also,  preceding  section  as  to  oc- 
casional obstruction. 

188.  Advance  Elevator  &  Ware- 
house Co.  v.  Eddy,  23  111.  App.  352; 
Eldert  v.  Long  Island  Elec.  R.  Co., 
165  N.  Y.  651,  59  N.  E.  1122,  affirm- 
ing 28  App.  Div.  451,  51  N.  Y.  Suppl. 
186;  People  v.  Northern  Central  Ry. 
Co.,    164   N.   Y.   289,   58    N.   E.    138; 


Delaware,  L.  &  W.  R.  Co.  v.  Buffalo, 
4  App.  Div.  (N.  Y.)  562,  38  N.  Y. 
Suppl.  510,  73  N.  Y.  St.  R.  600; 
Elyria  v.  Lake  Shore  &  M.  S.  Ry. 
Co.,  23  Ohio  Cir.  Ct.  R.  482.  See 
Jeaume  v.  New  York,  L.  &  W.  R. 
Co.,  35  N.  Y.  St.  R.  674,  13  N.  5f. 
Suppl.  249. 

Authority  to  highway  com- 
missioners to  permit  an  exten- 
sion of  tracks  of  a  surface  railroad 
refers  to  an  extension  on  the  surface 
of  the  highway.  They  have  no  power 
to  grant  a  right  to  connect  a  surface 
vailroad  with  an  elevated  railroad  by 
an  incline  plane  constructed  in  the 
highway  and  such  a  structure  will 
constitute  a  public  nuisance.  Eldert 
v.  Long  Island  Elec.  R.  Co.,  165  N. 
Y.  651,  59  N.  E.  1122,  affirming  28 
App.  Div.  (N.  Y.)  451,  51  N.  Y. 
Suppl.   186. 

Bridge  abutments  on  a  coun- 
try highway  which  is  but  slightly 
used    have    been    held    not   to    inflict 


306 


Nuisances  Affecting  Highways.  §  250 

character  as  a  nuisance  where  it  is  erected  under  competent  legal 
authority  and  the  law  has  been  complied  with  in  the  mode  and 
manner  of  its  construction.189  Where,  however,  a  railroad  com- 
pany relies  upon  a  legislative  act  as  justification  for  the  occupa- 
tion of  a  public  highway,  with  its  piers  and  abutments,  it  must  show 
that  the  statute  authorized  either  in  express  terms,  or  by  clear  and 
unquestionable  implication,  the  doing  of  the  very  acts  complained 
of,  or  that  the  statute  was  imperative  and  could  not  be  executed 
without  causing  a  nuisance.190  In  the  case  of  railroad  bridges,  it 
has  also  been  determined  that  they  will  not  be  regarded  as  nuis- 
ances where  they  are  the  necessary  result  of  the  lawful  operation 
of  the  road  and  are  constructed  with  due  regard  to  the  rights  of 
the  public  in  the  highway.191  And  it  has  been  declared  that  in  de- 
termining whether  such  a  bridge  is  a  nuisance  the  question 
whether  the  erection  worked  injurious  results  to  the  people  by  be- 
ing an  unreasonable  obstruction  of  the  highway  and  an  incon- 
venience to  public  travel,  is  to  be  considered.192  So,  an  approach 
to  a  bridge  over  railroad  tracks  will  not  be  regarded  as  a  nuisance 
where  it  is  a  great  convenience  to  the  traveling  public  and  avoids 
what  would  be  a  very  dangerous  crossing  and  consequent  accidents 
if  the  tracks  crossed  the  street  at  grade.193  But  where  a  highway 
bridge  was  so  constructed  over  a  railroad  that  brakemen  on  top  of 
trains  in  the  discharge  of  their  duties  could  not  avoid  danger  by 

such  a   serious  public  injury  as   will  Co.,   136  N.   Y.   528,   32  N.   E.    1047, 

induce   a  court  to   interfere   by   pre-  18  L.  R.  A.  768.     See  §§  67-84,  herein, 

liminary      injunction,      where      such  as  to  legalized  nuisances  generally, 

abutments  were  erected  on  the  sides  190.  People    v.    Northern    Central 

of  the    road    which    were   overgrown  Ry.  Co.,  164  N.  Y.  289,  298,  58  N.  E. 

with  brush  and  weeds.  Earitan  Turp.  138,  per  Bartlett,  J.;  Delaware,  Laek- 

v.  Port  Reading  R.  Co..  49  N.  J.  Eq.  awanna   &   W.  R.   R   Co.   v.   Buffalo, 

11,  23  Atl.   127°.  158  N.  Y.  266,  273,  53  W.  E.  44. 

189.  Garrett  v.  Lake  Roland  Elev.  191.  Jones  v.  Erie  &  W.  V.  R.  Co., 

R.  Co.,  79  Md.  277,  29  Atl.   830,   24  151  Pa.   St.  30,  25  Atl.   134,  31  Am. 

L.   R.   A.    396,   so  holding   as   to  the  St.  R.  722,  17  L.  R.  A.  758. 

abutments   and    structure   of   an    ele-  192.  Commonwealth    v.     Northern 

vated  railroad.  C.  R.  Co.,  7  Pa.  Super.  Ct.  234. 

A  railroad  erected  under  law-  193.  Commonwealth     v.      Pittston 

ful    authority    is    not    a    nuisance.  Ferry  Bridge  Co.,  148  Pa.  St.  621,  24 

Ravenstein  v.  New  York  L.  &  W.  R.  Atl.  87. 


307 


g  251  Nuisances  Affecting  Highways. 

bending  or  stooping  it  was  decided  that  the  bridge  was  a  nuisance 
per  se.m 

§  251.  Accumulations  of  snow  cleared  from  street  railway 
tracks — Use  of  salt. — If  snow,  removed  by  a  street  railway  com- 
pany from  its  tracks'  and  deposited  in  heaps  or  banks  upon  the 
highway  at  the  side  of  the  tracks,  is  allowed  by  the  company  to  re- 
main there  for  an  unreasonable  length  of  time,  a  public  nuisance 
will  thereby  be  created,195  and  the  company  will  be  liable  to  one 
injured  by  such  obstruction,  though  a  duty  may  devolve  upon 
others  to  remove  the  same.196  As  to  the  liability  of  a  street  rail- 
way company  in  this  class  of  cases,  it  has  been  said :  "  There  would 
seem  to  be  no  reasonable  ground  for  claiming  that  where  there  was 
a  large  accumulation  of  snow  alongside  of  the  tracks,  by  reason 
of  its  removal  from  the  same,  which  accumulation  necessarily 
might  be  the  cause  of  injury  to  persons  who  sought  to  enter  the 
oars,  and  it  was  allowed  to  remain  for  a  long  period  of  time,  to 
the  inconvenience  of  passengers  traveling  in  the  cars,  and  causing 
loss  of  life  or  limb,  the  company  would  not  be  liable  for  the  dam- 
ages sustained  by  its  neglect  in  not  removing  the  snow.  While  the 
railroad  company  would  have  the  right  to  remove  the  snow  from 
its  tracks,  it  could  not  lawfully  cause  an  obstruction  which  would 
Interfere  with  the  safe  passing  and  repassing  of  persons  traveling 
upon  the  road.  The  duty  imposed  upon  the  railroad  company  is 
the  same  as  that  which  is  incurred  by  every  owner  of  property  ad- 
joining a  street  in  a  populous  city.  Such  owner  is  bound  to  re- 
move the  snow  from  the  sidewalk  to  the  street,  but  would  not  be 
justified  in  permitting  its  accumulation  to  so  large  an  extent  as  to 
produce  injury  to  those  who  might  have  occasion  to  use  the  street. 

194.  Louisville    &    N.    R.    Co.    v.  a  car  can  not  pass  under  it,  is  not  a 

Hall,  87  Ala.  708,  6  So.  277,  4  L.  R.  nuisance  per  se. 

A.  710.    See  Louisville,  N.  A.  &  C.  R.  195.  Schrank  v.  Rochester  R.  Co., 

Co.  v.  Wright,  115  Ind.  378,  17  N.  E  83  Hun  (N.  Y.),  20,  31  N.  Y.  Suppl. 

584,  7  Am.  St.  R.  446.    Compare  Neff  922,  64  N.  Y.  St.  R.  754. 

\:  N.  Y.  C.  &  H.  R.  R.  Co.,  80  Hun  196.  Markowitz   v.   Dry  Dock,   E. 

(N.  Y.),  394,   30  N.  Y.   Suppl.   323,  B.  &  B.  R.  Co.,  12  Misc.  R.   (N.  Y.) 

holding  that  a  bridge  without  "tell-  412,  33  N.  Y.  Suppl.   702,  67  N.  Y. 

tales "   maintained  at  such  a   height  St.  R.  572. 
that  a  person  standing  on  the  top  of 

308 


Nuisances  Affecting  Highways.  §  252 

He  cannot  negligently  cause  or  maintain  an  obstruction  or  a  nuis- 
ance upon  or  in  front  of  his  own  premises  which  will  occasion  in- 
jury to  passers-by,  without  being  liable  for  the  damage  sustained 
thereby.  The  same  rule  would  seem  to  be  applicable  to  street 
railroads,  and  while  they  are  permitted  to  enjoy  the  use  of  their 
tracks  they  must  take  care  that  they  create  no  obstruction  to  per- 
sons passing  to  and  from  the  same.  They  are  bound  to  exercise 
reasonable  care  and  diligence  in  the  removal  of  snow  and  ice, 
preventing  its  accumulation  during  the  winter  season,  and,  if  they 
are  chargeable  with  negligence,  are  liable  for  the  consequences  aris- 
ing from  the  same.197  So,  where  a  tramway  company  cleared  their 
tracks  by  means  of  a  snow  plough  and  heaped  up  the  snow  on  the 
sides  of  the  street,  and,  for  the  purpose  of  facilitating  its  own 
traffic,  the  company  scattered  salt,  which  caused  the  snow  in  the 
grooves  of  its  rails  to  melt  and  the  mixture  thus  created  flowed  by 
gravitation  into  the  heaps  of  snow  already  collected  at  the  side, 
forming  a  freezing  mixture,  which  caused  injury  to  horses  and 
inconvenience  to  traffic,  which  was  compelled  to  force  its  way 
through  the  snow,  it  was  declared  that  this  constituted  a  nuisance 
to  the  highway.198 

§  252.  Trees  in  highway  as  a  nuisance — Right  of  munici- 
pality to  remove. — Trees  in  a  highway,  which  do  not  obstruct  or 
impede  travel,  are  not  necessarily  a  nuisance,199  and  it  has  been  de- 
clared in  Iowa  that  it  is  in  accordance  with  public  policy  to  pre- 
serve them  if  practicable.200  Trees  may,  however,  become  a  nuis- 
ance by  the  development  of  the  locality,  and  when  such  is  the  case 
the  right  of  the  municipality  to  remove  them  is  said  to  be  well 

197.  Dixon  v.  Brooklyn  City  &  N.  L.  474,  28  Atl.  1039,  23  L.  R.  A.  685. 
R.  Co.,  100  N.  Y.  170,  3  N.  E.  65,  per  200.  Burgett  v.  Greenfield,  120 
Miller,  J.  Iowa,   432,   94   N.   W.    933,   per   Mc-' 

198.  Ogston  v.  Aberdeen  District  Clain,  J.  See  Quinton  v.  Burton,  61 
Tramways  Co.  (1897),  A.  C.  Ill,  66  Iowa,  471,  16  N.  W.  569,  holding 
L.  J.  P.  C.  N.  S.  1.  that  young  trees  and  shrubs  at  the 

199.  Board  of  Trade  Teleg.  Co.  v.  side  of  the  road,  off  of  the  traveled 
Blume,  176  111.  247,  52  N.  E.  258;  track  and  which  do  not  obstruct  or 
Everett  v.  City  of  Council  Bluffs,  46  interfere  with  the  use  of  the  high- 
Iowa,  66;  Patterson  v.  Vail,  43  Iowa,  way  by  the  public  should  be  permit- 
412;  Bills  v.  Belknap,  36  Iowa,  583;  ted  to  stand. 

State  v.  Mayor  of  Vineland,  56  N.  J. 

309 


§  253  Nuisances  Affecting  Highways. 

settled.201  And  in  the  absence  of  fraud  or  oppression,  or  of  facts 
showing  a  clear  abuse  of  discretion,  the  determination  of  the 
municipal  authorities  that  trees  within  the  limits  of  the  highway 
are  obstructions'  and  nuisances  will  ordinarily  be  conclusive. 

§  253.   Same  subject  continued. — Where  authority  is  conferred 
upon  the  common  council  of  a  municipality  by  its  charter  "  to 
control  and  regulate  the  street's    .     .     .     and  to  remove  and  abate 
any  obstructions  and  encroachments  therein,"  and  to  "  cause  the 
removal  of  all  obstructions  in  and  upon  all  streets  in  said  city," 
it  has  been  decided  that  shade  trees  standing  within  the  limits  of 
the  sidewalk  and  belonging  to  the  abutting  owner  may  be  sum- 
marily cut  down  by  the  municipality,  though  it  might  not  appear 
that  such  trees  in  fact  constituted  an  obstruction.     The  court  here 
said :  "  There  can  be  no  doubt  but  that  the  common  council  had  the 
right  to  treat  them  as  obstructions  to  the  public  travel,  and  a  nuis- 
ance, and  to  abate  the  nuisance  in  the  manner  they  did,  to  protect 
the  public  in  the  lawful  use  of  the  sidewalk  and  the  city  from 
liability  for  injuries'  which  might  be  sustained  by  persons  passing 
along  and  over  it  and  who  might  be  injured  by  such  obstructions. 
Whether  the  trees  were  obstructions  to  travel  and  ought  to  be  re- 
moved in  order  to  make  the  sidewalk  reasonably  safe  for  travel, 
was,  we  think,  a  matter  within  the  quasi  legislative  discretion  con- 
ferred on  the  common  council  by  the  city  charter.     .     .     .     The 
provisions  in  the  city  charter  on  the  subject  of  encroachments 
and  obstructions  of  streets  and  sidewalks  give  very  extensive  and 

201,.  Stretch     v.     Cassopolis,     125  202.  Vanderhurst  v.  Tholcke,    113 

Mich.  167,  84  N.  W.  51,  51  L.  R.  A.  Cal.   147,   150,  45  Pac.  266,  35  L.  R. 

345.   84    Am.    St.   R.    567;    Miller   v.  A.    267,    citing    North    Chicago    City 

Detroit,  Ypsilanti  &  A.  A.  Ry.  Co.,  Ry.   Co.  v.  Lake  View,   105  111.  207, 

125  Mich.   171,  172,  84  N.  W.  49,  84  44  Am.   Rep.  788;    Roanoke  Gas   Co. 

Am.  St.  R.  569,  51  L.  R.  A.  955.    See,  v.  Roanoke,  88  Va.  810,  14  S.  E.  665; 

also,    Vanderhurst    v.     Tholcke,     113  High   on    Injunctions,   vol.   3,    §   593. 

Cal.    147,  45   Pac.    266,   35  L.   R.   A.  See,  also,  Atlanta  v.  Holliday,  96  Ga. 

267;    Hildrup   v.    Windfall    City,    29  546,   23   S.   E.   509.     As  to   power  of 

Ind.  App.  592,  64  N.  E.  942;   Wilson  municipality   to    declare    things    nui- 

v.  Simmons,  89  Me.  242,  36  Atl.  380.  sances,  see  §§  332-344,  herein. 
As  to  power  of  municipality  generally 
to  remove  or  abate  nuisances,  see  §§ 
:U5-352,  herein. 

310 


Nuisances  Affecting  Highways.  §  253 

comprehensive  powers  to  the  common  council,  of  a  quasi  legislative 
character,  but  without  any  particular  directions  as  to  the  manner 
of  their  exercise;  and  these  powers  are  peculiarly  adapted  to  the 
needs  of  a  growing  and  populous  village  or  city.  They  are  not 
only  very  comprehensive  and  far-reaching,  but  they  clearly  extend 
to  the  cutting  down  and  removal  of  the  trees  in  the  manner  adopted 
in  the  present  instance,  as  they  were  manifestly  obstructions  to  the 
sidewalk,  although  room  was  left  on  the  walk  for  foot  travel 
to  pass.  It  was  not  necessary,  in  order  that  they  should  constitute 
an  obstruction,  so  as  to  authorize  their  removal,  that  they  should 
interrupt  or  stop  travel.  ...  A  permanent  obstruction,  such  as 
trses  standing  within  a  sidewalk  or  traveled  street,  or  stone 
columns  which  may  interfere  with  public  travel,  constitute  per  se 
a  public  nuisance,  and  may  be  summarily  removed  by  direction  of 
the  common  council."  203  In  a  case  in  New  Jersey,  however,  it  has 
been  decided  that  power  conferred  upon  a  borough,  "  to  declare 
what  shall  be  considered  nuisances  in  the  street,  roads,  lots,  and 
places  in  said  borough,  and  to  prevent  and  remove  all  obstructions, 
incumbrances  and  nuisances  in  and  upon  any  street,  road,  lot, 
sidewalk,  inclosure  or  other  place  in  said  borough,"  does  not  auth- 
orize the  municipal  authorities  to  declare  anything  to  be  a  nuisi- 
ance  which  cannot  be  detrimental  to  the  health  of  the  city,  or 
dangerous  to  its  citizens,  or  a  public  inconvenience.  And  the 
power  to  present  and  remove  all  encroachment  was  here  held  to 
be  only  a  polios  power,  which  did  not  extend  to  cases  of  a  doubtful 
or  uncertain  nature,  and  which  are  required  to  be  first  lawfully 
determined.  In  this  case  an  ordinance  declaring  certain  shade 
trees  on  one  of  the  avenues  obstructions  and  nuisances  and  di- 
recting that  they  be  removed  was  held  to  be  unauthorized  under 
the  power  conferred  upon  the  municipality,  and  therefore  void.204 
But,  while  the  power  of  a  municipality  to  remove  trees  within  the 
limits  of  the  highway  when  they  are  an  obstruction  and  a  nuis- 
ance, is  generally  recognized,  even  though  the  fee  to  the  soil  in  the 
highway  belongs  to  the  abutting  owner,  yet  this  power  cannot  be 
capriciously  exercised  so  as  to  amount  to  a  manifest  abuse  of  dis- 

203.  Chase   v.    Oshkosh,    81    Wis.  204.  State  v.  Mayor  of  Vineland, 

313,  51  N.  W.  560,  15  L.  R.  A.  553,  56  N.  J.  L.  474,  28  Atl.  1039,  23  L. 
29  Am.  St.  R.  898,  per  Pinney,  J.  R.  A.  685. 

311 


§  254  Nuisances  Affecting  Highways. 

cretion.  So,  it  lias  been  decided  in  a  case  in  Georgia,  that  where 
it  palpably  appears  that  no  public  necessity  for  the  removal  of 
shade  trees  standing  on  the  edge  of  a  sidewalk  exists,  and  that  no 
public  convenience  will  be  thereby  subserved,  the  act  of  the 
municipal  authorities  in  removing  them  will  not  be  justified  where 
poles  for  telegraph,  telephone,  and  trolley  wires  are  allowed  to 
remain.205  So,  it  has  been  said  in  this  connection  by  the  court,  in 
..  case  in  Iowa :  "  We  do  not  say  that  if  the  public  convenience:  de- 
manded the  removal  of  the  trees  that  they  should  be  or  could  be 
retained  for  plaintiff's  comfort,  or  to  gratify  his  taste.  But  we  do 
not  find  such  a  state  of  facts.  Plaintiff  surrendered  the  use  of  his 
land,  which  is  occupied  by  the  highway,  for  the  public;  but  the 
public  may  not  use  it  in  a  manner  and  to  an  extent  not  demanded 
by  its  convenience  and  wants,  and  to  plaintiff's  injury.  The  fee  of 
the  land  is  in  plaintiff,  and  the  trees  are  a  part  of  the  realty.  If 
the  removal  of  these  trees  is  not  required  for  the  free  and  proper 
use  of  the  highway,  no  principle  of  law  will  permit  it  to  be  done 
against  the  will  and  interest  of  the  land  owner.  In  our  opinion 
the  evidence  clearly  establishes  that  the  public  suffer  no  incon- 
venience from  the  trees,  and  that  the  wants  of  public  travel  do 
not  demand  their  removal."  20B  And  it  has  also  been  decided  that 
power  so  conferred  on  a  municipality  must  be  exercised  by  virtue 
of  an  ordinance  of  general  application  and  not  by  an  ordinance 
applicable  to  a  particular  person,  thus  permitting  to  one  what  is 
denied  to  another.207 

§  254.  Flag  poles. — Having  in  view  the  fact  that  streets  and 
highways  are  primarily  for  the  purpose  of  travel  and  that  the 
public  is  entitled  to  an  unobstructed  passage  except  so  far  as  it 
may  be  occupied  for  some  lawful  temporary  purpose  or  by  some 
legalized  obstruction  or  encroachment,  it  would  seem  that  a  flag 
pole  erected  by  an  individual  in  a  street  would  be  regarded  as  a 
nuisance.     And  it  has  been  so  decided  in  a  case  in  ISTew  Jersey.208 

205.  Atlanta  v.  Holliday,  96  Ga.  must  not  discriminate  but  must  be 
546,  23  S.  E.  509.  uniform  in  operation,  see  §§  335-337, 

206.  Bills    v.    Belknap,    36    Iowa,       herein. 

584,  585,  per  Beck,  Ch.  J.  208.  Dreher  v.  Yates,  43  N.  J.  L. 

207.  Gitt  v.  Hanover,  4  Pa.  Diat.  473,  wherein  it  was  said  by  the 
JR.  606.     That  a  municipal  ordinance      court  "  A  flag-staff  in  a  public  street 

312 


Nuisances  Affecting  Highways. 


§254 


In  a  case  in  Pennsylvania,  however,  it  has  been  determined  that 
a  liberty  pole  so  erected  is  not  necessarily  a  nuisance  and  that  if  it 
is  sound  and  is  properly  secured  and  protected  there  can  be  no 
iecovery  by  one  for  an  injury  caused  by  its  being  broken  by  an 
extraordinary  wind.209 


is  per  se  a  nuisance  and  the  reason 
of  this  is  that,  in  the  nature  of 
things,  it  is  an  obstruction  to  those 
who  have  the  right  to  the  use  of  the 
street  over  the  entire  area.  The  fact 
of  the  existence  of  such  a  structure 
so  located,  justifies  the  allegation 
that  it  was  an  unlawful  obstruction." 
Per  Beasley,  C.  J. 

209.  Allegheny  v.  Zimmerman,  95 
Pa.  St.  287,  40  Am.  Rep.  649.  The 
court  declared  in  this  case  that  the 
right  to  partially  obstruct  the  street 
was  not  limited  to  cases  of  strict  ne- 
cessity, but  extended  to  purposes 
of  convenience  and  ornament  where 
it  does  not  unreasonably  interfere 
with  public  travel.  It  was  also  said 
by  the  court:  "The  erection  of  lib- 
erty poles  appears  to  have  been  al- 
most coeval  with  the  birth  of  our  na- 
tion. As  the  name  imports,  they 
were  erected  to  symbolize  our  liber- 
ties and  as  a  mode  of  proclaiming 
that  we  had  thrown  off  all  alle- 
giance to  the  government  of  Great 
Britain.  At  first  they  appear  to 
have  been  used  as  expressive  of  con- 
currence in  the  principles  embodied 
in  the  Declaration  of  Independence. 
As  time  passed  on  they  began  to  be 
erected  by  each  political  party  of  the 
country  to  express  its  greater  devo- 
tion to  the  rights  of  the  people.  As 
the  object  of  their  erection  was  pa- 
triotic and  with  a  view  of  inciting  a 
spirit  calculated  to  advance  the  pub- 
lic welfare,  they  were  placed  on  high- 
ways and  public  squares.     The  people 


so  desired  it.  The  municipal  au- 
thorities assented  to  it.  It  is  a  cus- 
tom sanctioned  by  a  hundred  years 
and  interwoven  with  the  traditions, 
memories  and  conceded  rights  of  free 
people.  Unless  forbidden  by  the  au- 
thorities, it  has  been  considered  the 
exercise  of  a  lawful  license  incident 
to  citizenship.  Hence  in  this  case 
no  leave  was  asked  of  the  authori- 
ties to  erect  the  pole,  and  no  objec- 
tion was  made  by  them.  The  travel 
on  the  street  where  it  stood  was 
merely  local.  It  did  not  occupy  the 
street  to  such  an  extent  or  in  such  a 
manner  that  any  person  complained 
of  its  interfering  with  the  public 
travel.  To  all  appearance  the  pole 
was  strong  and  sound.  No  doubt  ex- 
isted as  to  its  strength.  ...  If 
it  has  been  a  uniform  custom  for  the 
people  to  erect  such  poles  in  the 
streets  of  the  city  from  its  earliest 
history  under  the  implied  assent  of 
the  municipal  authorities,  and  if  this 
one  was  carefully  erected,  having  due 
regard  to  the  material  of  which  it 
was  formed  and  the  manner  in  which 
it  was  secured  so  that  a  careful  and 
prudent  person  would  have  appre- 
hended no  danger  therefrom,  we  think 
it  was  not  a  nuisance  per  se.  It  is 
therefore  a  question  for  the  jury 
whether  it  was  erected  in  such  a 
place  and  manner  and  maintained  for 
so  long  a  time  under  all  the  circum- 
stances as  to  create  reasonable  appre- 
hension of  danger."     Per  Mercur,  J. 


313 


^255  Nuisances  Affecting  Highways. 

§  255.  Objects  frightening  horses. — Objects  within  the  limits 
of  the  highway  which  are  of  such  a  character  as  to  frighten  horses 
of  ordinary  gentleness  may  be  regarded  as  nuisances,210  which  will 
render  a  municipality  liable  for  an  injury  caused  thereby.211  And 
such  an  object  may,  nevertheless,  be  a  nuisance  even  though  it  does 
not  encroach  upon  the  traveled  path  and  there  is  no  danger  of  col- 
lision.212 So  it  has  been  declared  that  while  it  is  true  that  the 
owner  of  land  adjacent  to  a  highway  and  owning  presumptively  to 
the  centre  thereof  may,  subject  to  the  public  easement,  make  a 
reasonable  use  of  the  land  even  within  the  location,  yet  a  use  which 
involves  the  placing  of  objects  of  such  a  character  as  will  naturally 
frighten  horses  ordinarily  gentle  and  well  broken,  is  not  reason- 
able, but  is  unlawful  and  constitutes  a  nuisance.213  So  a.  railroad 
company  which,  for  the  purpose  of  loading  and  unloading  freight, 
uses  machinery  and  implements  within  the  limits  of  the  highway 
which  will  naturally  frighten  horses  and  in  that  way  endanger 
travelers  who  ar©  in  the  exercise  of  due  care  will  be  liable  for  an 
injury  caused  by  such  unauthorized  use.214  And  sliding  in  a  pub- 
lic street  accompanied  with  boisterous  conduct  may  likewise,  under 
such  circumstances,  be  a  public  nuisance,215  as  may  also  the  obstruc- 
tion of  a  street  by  an  exhibition  of  wild  animals.216 

210.  Clinton  v.  Howard,  42  Conn.  town,   98  Mass.  80;  Titus  v.   North- 

294;  Ayer  v.  Norwich,  39  Conn.  376,  bridge,    97   Mass.    258,   93    Am.    Dec. 

12   Am.    Rep.    396;      Young   v.    New  91;      Keith     v.      Easton,      2      Allen 

Haven,   39   Conn.   435;   Card  v.   Ells-  (Mass.)    552.     As   te   municipal    lia- 

worth,  65  Me.  547,  20  Am.  Rep.  722;  bility     generally,     see      §§      353-358, 

Lake  v.  Milliken,  62  Me.  240,  16  Am.  herein. 

Rep.    456;   Bennett   v.   Fifield,    13   R.  212.  Card    v.    Ellsworth,    65    Me. 

I.   139,   43   Am.    Rep.    17;      Little   v.  547,   20   Am.    Rep.    722;      Foshay   v. 

Madison,   42  Wis.  643,   24   Am.   Rep.  Glen  Haven,  25  Wis.  288,  3  Am.  Rep. 

435;   Foshay  v.  Glen  Haven,  25  Wis.  73.     That   public  travel  need   not  be 

288,  3  Am.  Rep.  73.  obstructed,  see,  also,  §  214,  herein. 

211..  Ayer    v.    Norwich,    39    Conn.  213.  Lynn   v.   Hooper,   93  Me.   46, 

376,  12  Am.  Rep.  396;   Stone  v.  Lang-  44  Atl.  127,  so  holding  in  the  case  of 

worthy,  20   R.   I.   602,   40   Atl.   832;  a  hay  cap  at  the  side  of  the  highway. 

Bennett   v.   Fifield,    13  R.   I.   139,   43  214.  Mudd    v.    Fargo,    107    Mass. 

Am.   Rep.    17;      Morse   v.   Richmond,  261,  264. 

41  Vt.  435,  98  Am.  Dec.  600;   Foshay  21,5.  Jackson,    v.     Castle,    80    Me. 

v.  Glen  Haven,   25  Wis.   288,  3  Am.  119,  13  Atl.  49. 

Rep.   73.     But   see   Bemis   v.  Arling-  216.  Little   v.    Madison,    42    Wia. 

ton,  114  Mass.  507;  Cook  v.  Charles-  643,  24  Am.  Rep.  435,  holding  that  in 

314 


Nuisances  Affecting  Highways. 


§256 


§  256.   Same  subject — Qualifications  of  rule. — This  rule,  how- 
ever, only  applies  in  the  case  of  a  horse  of  ordinary  gentleness  and 
does'  not  include  every  case  in  which  a  horse  may  be  frightened 
irrespective  of  his  disposition  or  of  the  object  causing  the  fright.217 
And  it  is  also  limited  in  its  application  to  this  extent  that  persons 
using  the  highway  with  horses  do  not  possess  rights  superior  to 
those  traveling  by  other  means  and  that  a  new  means  of  locomo- 
tion may  be  adopted  and  not  be  a  nuisance,  the  question  of  liability 
then  being  dependent  upon  where  there  has  been  any  negligence  in 
such  use.218    So  it  has  been  declared  that  a  street  car,  steam  thresh- 
ing machine  or  a  fire  engine,  even  though  they  might  frighten 
horses  when  standing  still,  are  not  regarded  as  nuisance  per  se,  nor 
dangerous  to  have  in  common  use,  if  handled  with  due  care.219    So 
the  operation  of  a  portable  engine  near  a  public  highway  is  not 
necessarily  a  nuisance.220     As  was  said  by  the  court  in  this  case: 
"It  would  not  do  to  say  that  the  operation  of  a  portable  engine, near 
a  public  highway,  necessarily  resulted  in  creating  a  nuisance,  when 
it  is  according  to  daily  experience,  during  certain  seasons  of  the 
year,     customary     to     see     steam     threshing    machines     in     op- 


an  action  against  a  city  a  complaint 
was  good  on  demurrer  which  alleged 
that  the  defendant  knowingly  and 
carelessly  permitted  the  obstruction 
of  its  streets  by  an  exhibition  of  wild 
animals,  to  wit,  two  bears,  and  that 
such  exhibition  was  sanctioned  and 
authorized  by  the  city,  was  calcu- 
lated to  produce  injury  to  persons 
lawfully  upon  the  street,  and  that 
plaintiff's  horse  was  thereby  fright- 
ened and  the  plaintiff  injured.  As  to 
animals  generally,  see  chap.  11, 
herein. 

217.  Stone  v.  Langworthy,  20  R. 
I.  602,  40  Atl.  832,  wherein  it  is 
said:  "It  is  clear  that  the  rule  can- 
not apply  to  all  horses  irrespective 
of  disposition,  for  a  horse  might  take 
fright  at  a  discoloration  in  the  road, 
a  stone,  bush,  post,  leaves,  or  other 
objects  for  which  it  would  be  unrea- 


sonable  to   charge   a   town   with   lia- 
bility."    Per  Stiness,  J. 

218.  Macomber  v.  Nichols,  34 
Mich.  212,  22  Am.  Rep.  522,  holding 
tnat  it  was  error  to  instruct  the  jury, 
in  an  action  for  an  injury  caused  by 
a  horse  taking  fright  at  an  engine 
mounted  on  wheels,  that  "  a  party 
placing  upon  the  highway  any  vehicle 
unusual,  and  calculated  from  its  ap- 
pearance and  mode  of  locomotion  to 
frighten  horses  of  ordinary  gentle- 
ness, is  liable  for  all  damages  result- 
ing therefrom."  See,  also,  in  this 
connection   §   212,  herein. 

219.  Chicago  Great  Western  Ry. 
Co.  v.  Kenyon,  70  111.  App.  567,  569v 
570. 

220.  Wabash,  St.  Louis  &  Pao, 
Ry.  Co.  v.  Farrer,  111  Ind.  195,  199, 
12  N.  E.  296,  60  Am.  Rep.  696. 


315 


§  257  Nuisances  Affecting  Highways. 

eration  on  every  hand,  and  often  necessarily  close  to 
public  highways.  Eoad  engines  propelled  by  steam,  and 
portable  engines  operated  by  steam,  have  become  familiar 
in  every  agricultural  community.  To  declare  that  their 
use  near  or  their  passage  over,  a  public  highway  constituted 
a  nuisance,  would  be  practically  to  prohibit  their  use  in  the  man- 
ner in  which  they  are  customarily  employed  and  moved  from  place 
to  place.  It  must  be  supposed  that  horses  of  ordinary  gentleness 
have  become  so  familiar  with  these  objects  as  to  be  safe  when  under 
careful  guidance."  221 

§  257.  Toll-gates. — The  maintenance  of  a  toll-gate  and  the  col- 
lection of  tolls  without  any  lawful  authority  therefor,  will  consti- 
tute a  public  nuisance.222  So  it  has  been  decided  that  such  a  nuis- 
ance is  created  where  a  turnpike  company  continues  to  exact  tolls 
after  its  franchise  has  expired.223  On  the  other  hand,  where  a 
turnpike  company  constructed  and  maintained  its  road  and  estab- 
lished a  toll-gate  in  accordance  with  a  franchise  granted  to  it  by 
the  State,  it  was  decided  that  it  was  entitled  to  an  injunction 
restraining  the  use  of  a  private  road  and  bridge  which  seriously 
injured  the  plaintiffs  in  the  enjoyment  of  their  franchise.  The 
court  said  in  this  case :  "  The  new  road  by  its  termini,  and  its 
vicinity,  creates  a  competition  most  injurious  to  the  statute  fran- 
chise, and  becomes  what  is  deemed  in  law,  in  respect  to  such  a 
franchise,  a  nuisance.  It  was  observed  in  the  case  of  Ogden  v. 
Gibbons,224  and  shown  to  be  a  principle  of  the  common  law,  that 
if  one  had  a  ferry  by  prescription,  and  another  erected  a  ferry  so 
near  it,  as  to  draw  away  its  custom,  it  was  a  nuisance,  for  which 
the  injured  party  had  his  remedy  by  action.  .  .  .  The  same  doc- 
trine applies  to  any  exclusive  privilege  created  by  statute ;  all  such 
privileges  come  within  the  equity  and  reason  of  the  principle ;  no 
rival  road,  bridge,  ferry  or  other  establishment  of  a  similar  kind 
and  for  like  purposes,  can  be  tolerated  so  near  to  the  other  as 
materially  to  affect  or  take  away  its  custom.    It  operates  as  a  fraud 

221.  Per  Mitchell,  J.  R-  C.  G.  R.  Co.,  138  Mo.  332,  39  S. 

222.  Columbus  v.  Rodders,  10  Ala.       W.  910,  36  L.  R.  A.  457. 

37;      Lancaster      Turnpike     Co.     v.  224.  4   Johns.   Ch.    (N.  Y.)    150,. 

Rogers,  2  Pa.  114,  49  Am.  Dec.  179.        160. 

223.  State,  Allison  v.  Hannibal  & 

316 


Nuisances  Affecting  Highways. 


§258 


upon  the  grant  and  goes  to  defeat  it.  The  consideration  by  which 
individuals  are  invited  to  expend  money  upon  great,  and  expen- 
sive, and  hazardous  public  works,  as  roads  and  bridges,  and  to  be- 
come bound  to  keep  them  in  constant  and  good  repair,  is  the  grant 
of  a  right  to  an  exclusive  toll.  This  right  thus  purchased  for  a 
valuable  consideration,  cannot  be  taken  away  by  direct  or  indirect 
means,  devised  for  the  purpose,  both  of  which  are  equally  un- 
lawful." 225 

§  258.  Other  particular  obstructions,  acts,  or  things  as  nuis- 
ances.— In  the  application  of  the  general  rules  as  to  the  use  of 
highways  and  nuisances  therein,  it  has  been  decided  that  a  nuis- 
ance exists  in  the  case  of  logs  piled  in  the  highway  but  a  few  feet 
from  the  traveled  track  and  allowed  to  remain  for  an  unreason- 
able length  of  time  ;226  a  bill  board  standing  upon  the  sidewalk  ;227 
an  awning  in  front  of  abutting  property  in  violation  of  an  ordi- 
nance;228 electric  light  wires  not  properly  insulated;229  the  dis- 
charge of  fire  rockets  on  a  city  street  ;230  coasting  so  as  to  endanger 
the  safety  of  travelers  ;231  use  of  abusive  language  on  a  highway  ;232 


225.  Newburgh  &  Cochecton 
Turnpike  Co.  v.  Miller,  5  Johns.  Ch. 

(N.  Y.)    101,    110,   9  Am.  Dec.   274, 
per  The  Chancellor. 

226.  Lawton  v.  Olmstead,  40  App. 
Div.  (N.  Y.)  544,  58  N.  Y.  Suppl. 
36. 

227.  Wilkes-Barre  v.  Burgunder, 
7  Kulp.  (Pa.)   63. 

228.  Brinkman  v.  Eisler,  16  N.  Y. 
Suppl.  154,  40  N.  Y.  St.  R.  865. 

A  license  to  erect  an  awning 
where  they  are  prohibited  by  a  gen- 
eral ordinance  is  revocable  at  any 
time.  Hibbard  v.  Chicago,  173  111. 
91,  50  N.  E.  256,  40  L.  R.  A.  621, 
affirming  59  111.   App.   470. 

229.  United  States  Illuminating 
Co.  v.  Grant,  55  Hun  (N.  Y.),  222,  7 
N.  Y.  Suppl.  788,  27  N.  Y.  St.  R. 
767.  See  Consolidated  Elec.  L.  & 
P.  Co.  v.  Healy,  65  Kan.  798,  70  Pac. 
884,  13  Am.  Neg.  R.  71. 


230.  Cameron  v.  Heister  (Ohio), 
22  Wkly.  Law  Bui.  384. 

Discharge  of  fireworks  au- 
thorized by  a  municipality  is  not 

a  nuisance  per  se  so  as  to  render  the 
one  discharging  them  liable  for  an 
injury  caused  thereby  irrespective  of 
the  question  of  negligence.  Crowley 
v.  Rochester  Fireworks  Co.,  95  App. 
Div.  (N.  Y.)  13,  88  N.  Y.  Suppl.  483. 
As  to  liability  of  city  to  person 
injured  by  fireworks  discharged  in  a 
public  place  under  municipal  license 
see  Landau  v.  City  of  New  York,  90 
App.  Div.  (N.  Y.)  50,  85  N.  Y. 
Suppl.  816. 

231.  Wilmington  v.  Vandegrift,  1 
Marv.  (Del.)  5,  29  Atl.  1047,  65  Am. 
St.  R.  256,  25  L.  R.  A.  538. 

232.  State  v.  Davis,  80  N.  C.  351, 
30  Am.  Rep.  86,  holding  that  an  abut- 
ting owner  who  owns  the  fee  to  the 
soil  of  the  highway  may  abate. 


317 


§258 


Xuisances  Affecting  Highways. 


use  of  highway  for  purposes  of  a  fair;233  the  grading  of  a  street  by 
an  abutting  owner  in  front  of  his  premises  in  such  a  way  as  to 
obstruct  passage  and  use  in  the  ordinary  manner  ;234  permitting  a 
railroad   car  containing  explosives  to   stand  for  an  unnecessary 
length     of    time     at    a    station     or     failing    to     exercise    reas- 
onable    care     as     to     such     a     car;235     and     the     maintenance 
of  a  fruit  stand  upon  a  sidewalk.236    But  where  it  did  not  appear 
that  a  water  box  constructed  by  the  owner  of  a  fee,  adjoining  a 
street,  within  the  limits  of  the  street  opposite  his  land  for  the  pur- 
pose of  controlling  the  water  from  the  main  in  the  street,  was  ille- 
gally there,  it  was  held  that  it  might  be  presumed  to  be  lawfully 
there  and  that  if  rightfully  there,  it  only  became  a  nuisance  from 
faulty  construction  or  condition  so  as  to  obstruct,   endanger  or 
interfere  with  the  public  use  of  the  street.237    And  it  has  been  de- 
cided that  a  hitching  rack  is  not  a  nuis*ance  per  se.m    And  a  use  of 
streets  by  a  duly  incorporated  company  to  lay  pipes  and  apparatus 
for  the  purpose  of  conveying  natural  gas  has  been  declared  not  to 
be  a  public  nuisance.239     Xor  are  telephone,  telegraph  or  electrio 
light  poles  when  erected  in  a  street  under  lawful  authority.240    Xor 


233.  Augusta  v.  Reynolds  (Ga., 
1905),  50  S.  E.  998,  so  holding  in  the 
case  of  a  street  one  hundred  and 
eighty  feet  wide  where  it  was  pro- 
posed to  occupy  a  space  therein  sev- 
enty-five or  eighty  feet  in  width  and 
about  four  blocks  in  length  with 
tents,  buildings  and  structures,  and 
it  appeared  that  the  fair  would  con- 
sist of  tents  inclosing  shows  and  ex- 
hibitions, structures,  stands,  Ferris 
wheels,  merry-go-rounds,  "  shoot  the 
chutes,"  the  "  loops "  and  various 
other  devices  and  obstructions  for  the 
amusement  of  the  public.  It  was  de- 
clared by  the  court  that  the  proposed 
use  of  the  street  either  in  whole  or 
in  part  did  not  have  as  a  basis  "  any 
purpose  which  the  law  would  recog- 
nize as  lawful,  in  the  absence  of  ex- 
press legislative  authority  permitting 
it;"  that    the    municipality    had    no 


power  to  authorize  it  and  that  it  was 
a  public  nuisance.     Per  Cobb,  J. 

234.  San  Francisco  v.  Buckman, 
111  Cal.  25,  43  Pac.  396. 

235.  Ft.  Worth  &  D.  C.  Ry.  Co. 
v.  Beauchamp,  95  Tex.  496,  68  S.  W. 
502,  holding  that  where  adjacent 
property  is  injured  by  an  explosion 
in  such  a  case  the  company  will  be 
liable.  See  Marine  Ins.  Co.  v.  St. 
Louis,  I.  M.  &  S.  R.  Co.,  41  Fed.  643. 

236.  Costello  v.  State,  108  Ala. 
45,  18  So.  820,  35  L.  R.  A.  803. 

237.  Staples  v.  Dickson,  88  Me. 
362,  34  Atl.  168. 

238.  Harrison  County  Ct.  v. 
Wall,  11  Ky.  Law  R.  223,  12  S.  W. 
133. 

239.  Appeal  of  Borough  of  Butler 
(Pa.),  6  Atl.  708. 

240.  Irwin  v.  Great  Southern 
Teleph.   Co.,   37  La.  Ann.  63,   1   Am. 


318 


Nuisances  Affecting  Highways.  §  259 

is  a  mere  temporary  structure  for  repairing  a  building  such  as  a 
scaffolding  which  overhangs  the  sidewalks  necessarily  a  nuisance.241 
Nor  will  a  court  enjoin  as  a  nuisance  gates  constructed  at  a  rail- 
road crossing,  they  being  regarded  as  a  proper  and  necessary  regu- 
lation for  public  safety.242  Again,  though  the  making  of  a  speech 
in  a  street  may,  by  reason  of  the  street  being  obstructed,  be  a  pub- 
lic nuisance,  yet  it  is  not  one  per  se.  As  has  been  said :  "  A  street 
may  not  be  used,  in  strictness  of  law,  for  public  speaking;  even 
preaching  or  public  worship,  or  a  pavement  before  another's  house 
may  not  be  occ/upied  to  annoy  him ;  but  it  does  not  follow  that 
everyone  who  speaks  or  preaches  in  the  street,  or  who  happens  to 
collect  a  crowd  therein  by  other  means,  is  therefore  guilty  of  the 
indictable  offense  of  nuisance.  His  act  may  become  a  nuisance  by 
his  obstruction  of  the  public  highway,  but  it  will  not  do  to  say  it 
is  a  nuisance  per  se."  243 

§  259.  Damages  recoverable. — In  an  action  to  recover  damages 
for  an  injury  caused  to  abutting  property  by  a  nuisance  upon  the 
highway  which  is  not  permanent  in  its  nature,  the  damages  should 
be  limited  to  those  sustained  up  to  the  time  of  the  commencement 
of  the  suit  and  should  not  be  estimated  on  the  basis  of  the  diminu- 

Elec.  Cas.  709;  Gay  v.  Mutual  Union  Fed.  Cas.  No.  9580  a.  See  Fried- 
Tel.  Co.,  12  Mo.  App.  485,  1  Am.  lander  v.  Delaware  &  H.  Canal  Co., 
Elec.  Cas.  427.  13  N.  Y.  Suppl.  323,  34  N.  Y.  St.  R. 
Telephone  poles  are  a  public  650,  58  Hun  (N.  Y.),  605,  mem.. 
nuisance  at  common  law  where  they  holding  that  where  the  municipal  au- 
are  of  such  sizes,  dimensions  and  thorities  permit  the  construction  at 
solidity  as  to  obstruct  and  prevent  a  crossing  of  gates  of  the  most  ap- 
passage  of  carriages  and  horses  or  proved  and  effective  kind,  which  are 
foot  passengers.  Reg  v.  United  King-  reasonably  and  skillfully  adapted  to 
dom  Elec.  Teleg.  Co.,  31  L.  J.  M.  C.  their  purpose  and  are  opened,  closed 
N.  167.  Compare  People  v.  Metro-  and  used  in  a  proper  manner  there 
politan  Teleph.  &  Teleg.  Co.,  31  Hun  can  be  no  recovery  by  an  adjoining 
(N.  Y. ),  596,  1  Am.  Elec.  Cas.  604,  landowner  because  of  their  mainte- 
holding  that  such  poles  cannot  be  ad-  nance,  though  he  sustains  more  in- 
judged  a  public  nuisance  but  may  jury  than  others  by  reason  of  their 
constitute  a   purpresture.  location. 

241.  Hexamer  v.  Webb,  101  N.  Y.  243.  Fairbanks  v.  Kerr,  70  Pa. 
377,  4  N.  E.  755,  54  Am.  Rep.  703.  St.    86,    10    Am.    Rep.    664,   per   Ag- 

242.  Miller  v.  Long  Island  R.  Co.,  new,  J. 

319 


§  260  Nuisances  Affecting  Highways. 

tion  of  value  of  such  property,244  the  depreciation  in  the  value  of 
the  use  or  rental  value  being  declared  to  be  the  proper  measure  of 
damages  ordinarily.245  Where,  however,  the  nuisance  is  a  per- 
manent one,  there  may  be  a  recovery  of  permanent  damages,  based 
generally  on  the  depreciation  in  the  value  of  the  property  in- 
jured,246 to  show  which,  evidence  is  admissible  as  to  the  value  of 
the  property  before  and  after  the  erection  of  the  nuisance  com- 
plained of.247  In  case  of  a  nuisance  caused  by  the  operation  of  a 
railroad  in  an  unlawful  manner,  the  damages  should  only  be  for 
the  injury  caused  by  such  unlawful  operation  and  should  not 
include  an  allowance  for  any  injury  caused  by  the  lawful  opera- 
tion of  the  road,  the  latter  injury  being  declared  to  be  damnum 
absque  injuria.248  Where  an  obstruction  of  a  highway  is  a  wilful 
and  unnecessary  one  and  of  such  a  character  as  to  show  a  culpable 
indifference  to  the  rights  of  the  public  and  a  willingness  to  subject 
travelers  to  vexatious  delay  or  injury,  punitive  damages  may  be 
awarded.249 

§  260.  Power  of  municipality  to  authorize  obstructions  or 
nuisances. — As  has  already  been  stated,  a  municipality  may,  in 
many  cases,  where  the  necessary  and  sufficient  power  has  been  dele- 
gated to  it  by  the  legislature,  authorize  and  legalize  that  within 

244.  Hopkins  v.  Western  Pac.  R.  due  to  the  negligent  operation  from 
Co.,  50  Cal.  190;  Brakken  v.  Minne-  those  caused  in  the  careful  operation 
apolis  &  St.  L.  R.  Co.,  29  Minn.  41,  of  the  road.  A  substantial  part  of 
11  N.  W.  124.  the   loss  being  occasioned  by  defend- 

245.  Pettit  v.  Grand  Junction,  119  ant's  tortious  acts  and  the  residue 
Iowa,  352,  93  N.  W.  381;  Van  Siclen  being  attributable  to  some  lawful  act 
v.  New  York,  32  Misc.  R.  (N.  Y.)  of  defendant,  inseparable  in  its  con- 
403,  66  N.  Y.  Suppl.  555.  sequences    from    the    tortious   act,   it 

246.  Kankakee  &  S.  R.  Co.  v.  has  been  declared  that  the  jury 
Horan,  131  111.  288,  23  N.  E.  621,  should  make  from  the  evidence  the 
affirming  30  111.  App.  552.  best     estimate     under     the     circum- 

247.  Wallace  v.  Kansas  City  &  stances  as  a  basis  of  compensatory 
Southern  Ry.  Co.,  47  Mo.  App.  491.  damages    for    the    actionable    injury. 

248.  Thompson  v.  Pennsylvania  R.  Jenkins  v.  Pennsylvania  R.  Co.,  67 
Co.,  51  N.  J.  L.  42,  15  Atl.  833.  N.   J.   L.   331,    51    Atl.   704,    11    Am. 

Recovery    should    not   be    lim-  Neg.  Rep.  464. 

ited  to  nominal  damages  in  such  249.  Tutwiler   Coal,   Coke   &  Iron 

a  case  because  of  the  inherent  diffi-  Co.  v.  Nail   (Ala.,  1904),  37  So.  634. 
culty   in  distinguishing  the  damages 

320 


Nuisances  Affecting  Highways.  §  261 

its  limits  which  in  the  absence  of  such  authorization  would  be 
regarded  as  a  nuisance.250  It  has,  however,  no  power  to  license  the 
erection  or  commission  of  a  nuisance  in  or  upon  a  public  street 
unless  the  power  to  so  act  is  either  expressly  or  by  necessary  im- 
plication conferred  upon  it  either  by  the  charter  or  by  statute.251 
It  does  not  exist  by  virtue  of  a  general  provision  giving  the  city 
power  to  control  and  regulate  its  highways.2"2  The  fact  that  a 
municipality  is  invested  with  title  to  and  control  over  the  public 
streets,  gives  it  no  authority  to  exercise  an  arbitrary  control  with- 
out regard  to  the  rights  of  the  public.  The  streets  and  highways 
are  held  in  trust  for  the  benefit,  use  and  convenience  of  the  public 
generally  and  the  power  to  control  and  regulate  is  to  be  exercised 
with  reference  to  a  public  use  as  its  object  and  not  to  promote 
the  private  interest  of  some  individual  in  subordination  to  the 
rights  of  other  citizens.2 


253 


§  261.  Same  subject — Application  of  rules. — A  municipality 
vested  with  such  power  cannot  by  ordinance  authorize  an  individ- 
ual to  erect  a  structure  over  a  street  about  seventeen  feet  above  it 
and  three  stories  in  height,  for  the  purpose  of  connecting  buildings 
on  opposite  sides  of  the  street  where  the  supply  of  light  and  air 
from  the  highway  to  which  an  adjoining  owner  is  entitled  is  there- 

250.  See    §§    78-80.    herein.  send  v.  Epstein,  93  Md.  537,  49  Atl. 
New   York   City   was  authorized       629,  52  L.  R.  A.  409,  86  Am.  St.  R. 

by  the  consolidation   act  as  amended.  441;  Berry  Horn  Coal  Co.  v.  Scruggs- 

by  Laws   1896,  c.   718,  to  permit  by  McClure  Coal  Co.,  62  Mo.  App.  93, 

ordinance     the     erection     of     booths  Kalteyer   v.    Sullivan,    18    Tex.    Civ. 

under  the    elevated   stairs    and   such1  App.   488,  46   S.  W.    288;  Richmond 

authority  was  not  taken  away  by  the  v.  Smith,  101  Va.  161,  43  S.  E.  345, 

Greater    New    York    charter,    §    49,  13  Am.  Neg.  R.  465. 
subd.   3.     People  v.  Keating,   168  N.  253.  "The      power     over     streets 

Y.   390,  61  N.  E.   637,  rov'g  62  App.  given      to      municipal      corporations 

Div.  348,  71  N.  Y.  Suppl.  97.  under  the  ordinary  grants  in  muni- 

251.  First  National  Bank  v.  Ty-.  cipal  charters  does  not  authorize  the 
son,  133  Ala.  459,  32  So.  144,  91  Am.  municipal  authorities,  even  by  ex- 
St.  R.  46,  59  L.  R.  A.  399,  citing  2'  press  ordinance,  to  permit  the  erec- 
Dillon's  Mun.  Corp.  §  660.  tion  in  streets  of  temporary  obstruc- 

252.  Gray  v.  Baynard,  5  Del.  Ch.  tions  for  purely  private  gain."  Au- 
499;  Smith  v.  McDowell,  148  111.  51,  gusta  v.  Reynolds  (Ga.,  1905),  50  S. 
35  N.  E.  141.  22  L.  R.   A.  393:  Town-  jE.  998,  999,  per  Cobb,  J. 

321 


§  261  Nuisances  Affecting  Highways. 

by  materially    diminished.254     Nor    can    a    municipality    unless 
authorized  by  the  legislature  legalize  the  construction  of  a  railroad 
in  a  city  street.255     The  municipal  grant  in  such  a  case  being 
without  authority  the  railroad  constructed  in  pursuance  thereof 
ig  unlawfully  upon  the  highway  and  a  public  nuisance  which  may 
be  enjoined  by  one  showing  a  special  injury  by  reason  thereof.256 
Nor  under  its  general  power  to  control  and  regulate  streets  can  a 
municipality  authorize  an  obstruction  in  an  alley  for  private  use 
so  as  to  destroy  the  right  of  passage  out  and  over  said  alley  to  the 
street  and  deprive  a  person  of  his  right  of  ingress  to  and  egress 
from  such  street.257     And  power  given  to  the  common  council  of 
a  citv  to  regulate  matters  connected  with,  and  business  conducted 
upon,  the  streets  is  construed  as  giving  authority  merely  to  regu- 
late lawful  uses  and  not  to  authorize  an  ordinance  permitting  the 
obstruction  of  a  sidewalk  by  a  booth  or  stand  for  the  purpose  of 
displaying  goods  or  merchandise.258     It  has,  however,  been  deter- 
mined that  where  a  municipality  owns  the  fee  of  the  streets  it 
may  authorize  the  erection  and  maintenance  of  poles  and  wires 
in  the  street  for  the  purpose  of  furnishing  light  for  the  munici- 
pality and  its  inhabitants  provided  the  ordinary  use  of  the  street 
for  the  purposes  of  travel  is  not  thereby  materially  obstructed,  and 
that  an  abutting  owner  is  not  entitled  to  an  injunction  in  such  a 
case  except  it  is  shown  that  he  has  sustained  special  and  irrepar- 
able damages  different  in  kind  and  character  from  those  sustained 
by  other  property  owners  or  the  public  generally.259 

254.  Townsend  v.  Epstein,  93  Md.  256.  Glaessner  v.  Anheuser-Busch 
537,  49  Atl.  629,  52  L.  R.  A.  409,  86  Brew.  Assoc,  100  Mo.  508,  13  S.  W. 
Am.  St.  R.  441.     See,  also,  Tilly  v.       707. 

Mitchell   &   Lewis    Co.,    121    Wis.    1,  257.  Van    Mitzen    v.    Gotman,    79 

98  N.  W.  969.   ^As  to  power  of  mu-  Md.  405,  29  Atl.  608.     As  to  injury 

nicipality  as  to  erection  of  structures  to  access  or  egress,  see  §  222,  herein, 

generally,  see  §§  341-344,  herein.  258.  People  v.  Willis,  9  App.  Div. 

255.  New  Orleans  City  &  L.  R.  (N.  Y.)  214,  41  N.  Y.  Suppl.  168. 
Co.  v.  New  Orleans,  44  La.  Ann.  728,  As  to  exposure  of  wares  for  sale  on 
748,    11    So.    77,   78;   Philadelphia   v.  sidewalk,  see  §   227,   herein. 

River  Front  R.  Co.,   173  Pa.  St.  334,  259.  McWethy  v.  Aurora  Elec.  L. 

34  Atl.  60.    As  to  construction  of  rail-  &  P.   Co.,  202   111.   218,  67  N.  E.   9. 

roads    in    streets   and   parks,    see    §§  As  to  necessity  of  special  injury  gen- 

242-250,  herein.  erally,  see  §§  218,  219,  herein. 

322 


Nuisances  Affecting  Highways.  §  263 

§  262.  Municipal  authority  to  declare  things  in  highway  nuis- 
ances.— The  authority  of  a  town  over  its  highways  is  to  be  deter- 
mined by  reference  to  the  legislative  power  conferred,260  which  can 
only  be  exercised  in  the  mode  and  manner  prescribed,261  and  within 
the  limits  of  the  powers  given.  And  authority  given  to  a  munici- 
pality to  control  and  regulate  its  highways  and  to  declare,  prevent 
and  remove  nuisance,  will  not  authorize  it  to  declare  that  a  nuis- 
ance which  is  not  a  nuisance  either  at  common  law  or  by  statute, 
or  is  not  in  fact  one.262  So  it  has  been  decided  that  power  con- 
ferred upon  a  city  by  its  charter  "  to  declare  what  shall  constitute 
a  nuisance,"  will  not  authorize  it  to  declare  an  enclosure  of  a  rail- 
road track  within  the  plotted  portions  of  a  city  to  be  a  nuisance.263 
And  under  a  power  to  prevent  injury  and  annoyances  and  to 
abate  nuisances,  the  working  of  convicts  on  the  street's  of  a  city 
cannot  be  prevented  by  the  municipality  on  the  ground  that  it  is 
a  nuisance,  it  being  declared  that  a  grant  of  such  power  to  a 
municipality  does  not  give  it  power  to  condemn  anything  as  a 
nuisance  which  in  its  situation,  nature  or  use  does  not  come 
within  the  legal  notion  of  a  nuisance.264  And  the  act  of  one  per- 
son halting  on  the  streets  for  a  reasonable  time  without  misbehav- 
ing himself  in  any  way,  is  not  such  a  nuisance  as  the  city  has  the 
right  to  forbid  by  its  laws  under  the  general  power  delegated 
to  it.265 

§  263.  Same  subject — Continued. — Though  a  city  may  not 
have  the  power  to  declare  that  a  nuisance  which  is  not  one  per  se, 
yet  where  an  obstruction  of  a  highway  is  a  nuisance  irrespective 

260.  State  v.  Mobile,  5  Port.  As  to  power  of  municipality  to  de- 
(Ala.)  279,  30  Am.  Dec.  564.  See  §§  clare  things  nuisances,  see  §§  332- 
78-80,  330-352,  herein,  as  to  municipal       344,  herein. 

powers  generally.  263.  Grossman     v.     Oakland,     30 

261.  Brigantine  v.  Holland  Trust  Oreg.  478,  41  Pac.  5,  36  L.  R.  A.  593, 
Co.  (N.  J.  Ch.),  35  Atl.  344.  60  Am.  St.  R.  832. 

262.  Ex  parte  Taylor,  87  Cal.  91,  264.  Ward  v.  Little  Eock,  41  Ark. 
25  Pac.  258;  Laviosa  v.  Chicago,  St.  526,  48  Am.  Rep.  46. 

L.  &  N.  O.  R.  Co.,  1  McGloin   (La.),  265.  State  v.    Hunter,    106   N.   C. 

299,  303 ;  Commonwealth  v.  Kinports,  796,   799,    11    S.   E.    366,   8  L.   R.   A. 

12  Pa.  Co.  Ct.  R.  463.     See  State  v.  529,    citing   Cooley    Const.    Lim.    *p. 

Owen,  50  La.   Ann.   1181,  24  So.  187.  200. 

323 


§  263  Nuisances  Affecting  Highways. 

cf  any  ordinance  upon  the  subject,  a  conviction  for  maintaining 
the  same  will  be  sustained  under  an  ordinance  providing  that  any 
obstruction  of  a  city  without  proper  license  therefor,  constitutes 
a  common  nuisance.266  So  there  are  many  things  which  courts 
will,  without  proof,  declare  to  be  nuisances,  among  which  is  de- 
clared to  be  the  use  of  steam  for  the  purpose  of  propelling  street 
tars  along  a  public  street  in  a  thickly  populated  town  where  there 
is  no  legislative  grant  authorizing  its  use,  and  in  such  a  case,  a 
municipality  under  a  general  grant  of  power  to  define,  declare, 
prevent  and  abate  nuisances',  may  declare  the  use  of  steam  for 
such  a  purpose  to  be  a  nuisance.267  And  municipal  corporations 
may  prohibit  the  use  of  locomotives  in  the  public  streets  when  such 
action  does  not  interfere  with  vested  rights.268  So  an  ordinance 
declaring  the  erection  of  bill  boards  over  seven  feet  in  height  to  be 
a  nuisance,  has  been  held  valid,269  and  also  an  ordinance  condemn- 
ing hitching  posts,  erected  by  the  county,  as  a  nuisance.270  And 
it  has  likewise  been  determined  that  a  city  may  prohibit  the  distri- 
bution of  advertisements,  hand  bills  or  circulars  where  the  prob- 
able and  natural  result  of  such  act  is  that  they  will  be  thrown  into 
the  street,  where  they  will  become  a  source  of  danger  to  the  travel- 
ing public  by  reason  of  their  tendency  to  frighten  horses.  Such 
an  ordinance  is  declared  to  be  a  valid  and  reasonable  exercise  of  the 
police  power.271  So  it  has  been  decided,  that  the  city  of  Philadel- 
phia has  power  to  enact  reasonable  ordinances  for  the  protection 
of  the  public  in  their  right  to  the  free  and  safe  use  of  the  high- 
ways, and  that  an  ordinance  prohibiting  the  casting  of  such  things 
in  the  yards  or  vestibules  and  porches  of  private  dwellings  from 

266.  Wilkes-Barre  v.  Burgunder,  269.  Whitmier  v.  Buffalo,  118 
7  Kulp.   (Pa.)   G3.  Fed.  773,  holding,  however,  that  such 

267.  North  Chicago  City  By.  Co.  an  ordinance  Is  prospective  only  in 
v.  Lake  View,  105  111.  207,  44  Am.  its  operation  and  does  not  include 
Rep.  7S8.     As  to  use  of  highway  by  those  already  erected. 

railroads,  see  §§  242-250,  herein.  270.  Mercer    County    v.    Harrods- 

268.  Railroad  Company  v.  Rich-  burg,  23  Ky.  Law  Rep.  1744,  66  S. 
mond,  96   U.   S.  521,  52S,  24  L.  Ed.       W.   10. 

734.     See  Whitson  v.  City  of  Frank-  271.  Wettengel  v.  Denver,  20  Colo, 

lin,    34    Ind.    392;   Dnnnaher    v.    The       552,  39  Pac.  343. 
State.  8  Sm.  &  M.  (Miss.)  649. 

324- 


Nuisaxces  Affecting  Highways.  §  264 

whence  they  will  probably  be  thrown  or  blown  upon  the  street, 
not  only  tends  to  cleanliness  but  to  safety.272 

§  264.  Municipal  liability. — A  municipality  may  be  liable  for 
an  injury  caused  by  a  nuisance  maintained  by  it  as  well  as  an  indi- 
vidual.273 So  where  a  city  collects  garbage  and  filth  from  its 
streets  which  it  deposits  in  another  street,  thus  creating  a  nuis- 
ance injuring  one  in  the  occupation  of  his  dwelling  by  reason  of 
the  noxious  smells'  and  odors  therefrom,  it  will  be  liable  in  dam- 
ages for  the  injury  so  caused.274  And  such  a  liability  likewise 
exists  in  the  case  of  a  nuisance  caused  by  changing  the  grade  of  a 
street  in  the  unauthorized  construction  by  it  of  a  bridge  in  the 
highway  over  railroad  tracks.275  And  where  a  municipal  corpora- 
tion without  the  pretense  of  authority,  and  in  direct  violation  of  a 
statute,  assumes  to  gTant  to  a  private  individual  the  right  to 
obstruct  one  of  its  streets  while  in  the  transaction  of  his  private 
business,  and,  for  such  privilege,  takes  compensation,  it  must  be 
regarded  as  itself  maintaining  a  nuisance  so  long  as  the  obstruc- 
tion is  continued  by  reason  of  and  under  such  license.  And  it  is 
liable  for  all  damages  naturally  resulting  therefrom  to  one  who 
is  injured  in  his  person  or  property  by  such  obstruction.276  Again, 
where  a  duty  is  imposed  by  statute  upon  a  municipality  to  keep 
its  streets  free  from  nuisances,  a  failure  to  perform  such  duty, 
after  notice  of  a  nuisance  upon  its  streets,  will  render  the  muni- 

272.  Philadelphia  v.  Brabender,  though  abutting  property  is  damaged 
201  Pa.  St.  574,  51  Atl.  374;  Phila-  thereby  or  though  the  work  was  done 
delphia  v.  Brabender,  17  Pa.  Super.  negligently.  Omaha  v.  Flood,  57  Neb. 
Ct.  331.  124,  77  N.  W.  379. 

273.  New  Albany  v.  Slider,  21  A  constitutional  provision  al- 
Ind.  App.  392,  52  N.  E.  626;  Millett  lowing  compensation  for  injuries 
v.  St.  Albans,  69  Vt.  330,  38  Atl.  72.  caused  by  a  change  of  grade  does  not 
See  §§  353-358,  herein.  make  such  change  a   nuisance.       At- 

274.  New  Albany  v.  Slider,  21  kinson  v.  Atlanta,  81  Ga.  625,  7  S. 
Ind.  App.  392,  52  N.  E.  626.  E.  692. 

275.  Phelps  v.  Detroit,  120  Mich.  276.  Cohen  v.  New  York,  113  N. 
447,  79  N.  W.  640.  See  Schneider  v.  Y.  532,  21  N.  E.  700,  23  N.  Y.  St.  E. 
Detroit,  72  Mich.  240,  40  N.  W.  329.  509,  4  L.  R.  A.  406 ;  Kalteyer  v.  Sul- 

If       done       under       competent       livan,   18   Tex.  Civ.   App.   488,  46   S. 
legal  authority  a   change  of  grade       W.  288. 
is  not  to  be  regarded  as  a  nuisance 

325 


§  264 


Nuisances  Affecting  Highways. 


cipality  liable  in  damages  to  one  injured  thereby.  And  this  is 
held  to  be  true,  though  the  one  who  created  the  nuisance  may  be 
liable  to  the  city.277  In  many  of  the  States  a  municipality  is,  by 
statute,  made  liable  for  injuries  caused  by  a  defect  in  the  high- 
way. In  construing  such  laws  it  has  been  decided  that  an  obstruc- 
tion is  a  defect  within  the  meaning  of  the  statute,  and  that  a  fail- 
ure to  remove  an  obstruction  will  render  the  city  liable  in  dam- 
ages to  one  injured  thereby.278     As  is  said  in  a  New  York  case : 


277.  Zanesville  v.  Fannan,  53  Ohio 
St.  605,  42  N.  E.  703.  As  to  liability 
of  a  municipality  for  failure  to  re- 
move or  abate  nuisances,  see  §§  358- 
350,  herein. 

A  municipal  corporation  is 
not  liable  for  failure  or  refusal  to 
abate  a  nuisance  maintained  by  a 
private  individual  upon  private 
property  and  not  of  such  a  character 
as  to  amount  to  an  obstruction  of  a 
public  street  or  to  imperil  the  safety 
of  travelers  thereon.  And  this  is  de- 
clared to  be  true  though  the  nuisance 
in  question  is  a  sewer  which  the  mu- 
nicipal authorities  allowed  to  be  con- 
structed by  a  private  individual  in 
part  under  the  street,  such  part  not 
being  in  itself  the  cause  of  any  dam- 
age to  the  public  or  to  private  indi- 
viduals. Dalton  v.  Wilson,  118  Ga. 
100,  44  S.  E.  830.  Compare  Miller 
v.  Newport  News,  101  Va.  432,  44  S. 
E.  712. 

Permitting  a  platform  to  re- 
main which  projecte'd  from  the  sec- 
ond story  of  a  building  over  the  side- 
walk and  about  eight  feet  above  it, 
which  was  not  a  nuisance,  has  been 
held  not  to  render  the  city  liable  to 
a  person  injured  by  a  bale  of  hay 
pushed  from  such  platform,  it  being 
declared  that  the  municipality  could 
rightfully  presume  that  the  platform 
would   be   properly  used..     Parmenter 


v.  Marion,   113  Iowa,  297,  85  N.  W. 
90. 

278.  Rogers  v.  Newport,  62  Me. 
101;  Frost  v.  Portland,  11  Me.  271; 
Bigelow  v.  Weston,  3  Pick.  (Mass.) 
267;  Snow  v.  Adams,  1  Cush.  (Mass.) 
443;  Palmer  v.  Portsmouth,  43  N. 
H.  265. 

Whether  an  object  in  a  high- 
way constitutes  a  defect  within 
the  meaning  of  a  statute  by  reason 
of  its  tendency  to  frighten  horses  is 
declared  to  be  a  question  for  the 
jury  to  determine  under  the  circum 
stances  of  the  particular  case.  Cun- 
ningham v.  Clay  Turp.  (Kan.,  1904), 
76  Pac.  907. 

"  Damages  in  one's  property  " 
through  a  defect  in  the  highway  has 
been  construed  as  intending  some  in- 
jury to  an  article  by  which  its  value 
is  diminished  or  destroyed  and  not 
as  including  a  mere  loss  of  one's  time 
or  an  addition  to  his  expenses. 
Weeks  v.  Shirley,  33  Me.  271. 

As  to  notice  to  remove  en- 
croachments, see  Sardinia  v.  Butler, 
149  N.  Y.  505,  44  N.  E.  179;  Jame^ 
v.  Sammis,  132  N.  Y.  239,  30  N.  E. 
502,  43  N.  Y.  St.  It.  910;  Smithtown 
v.  Ely,  75  App.  Div.  (N.  Y.)  309,  78 
N.  Y.  Suppl.  178;  West  Union  v. 
Eichey,  64  App.  Div.  (N.  Y.)  156,  71 
N.  Y.  Suppl.  871. 


326 


Nuisances   Affecting  Highways.  §   2G4 

"  The  term  '  defective  highways  '  was  used  in  reference  to  their 
condition  for  public  travel  upon  them,  which  their  designation  as 
a  highway  imports,  and  in  view  of  the  purpose  for  which  they  are 
established  and  maintained.  And  the  impairment  of  a.  highway 
for  public  use  may  be  no  less  such  by  an  obstruction  placed  in  it, 
than  by  a  physical  disturbance  or  injury  to  the  bed  of  the  road- 
way. In  either  case  the  highway  is  in  a  defective  condition  and 
evidently  such  condition  is  within  the  meaning  of  the  term  '  defeo„ 
tive  highways  '  as  used  in  the  statute."  279 

279.  Whitney  v.  Ticonderoga,   127       St.  R.  135,  per  Bradley,  J. 
N.  Y.  40,  44,  27  N.  E.  403,  37  N.  Y. 


327 


CHAPTER   XIII. 

Waters. 

Section  265.  Riparian  rights. — Generally. 

266.  Riparian  rights. — General  rule. 

267.  Riparian   rights — Qualification  of   rule. — Reasonable  use. 

268.  Riparian  rights. — Ebb  and  flow  of  tide. — Reasonable  use. — Prior 

occupation. 

269.  Riparian  rights. — Reasonable  and  unreasonable  use. — Convenience 

or  necessity  as  to  locality. — Pollution  of  waters. 

270.  Riparian  rights. — Qualification  of  rule. — Mining  and  irrigation 

generally. 

271.  Riparian  rights. — Artificial  water  course. 

272.  Rights  as  to  navigable  waters. — Generally. 

273.  Obstruction  of  navigable  waters. — Generally. 

274.  Bridges. 

275.  Docks,  wharves,  piers  and  like  structures. 

276.  Fishing  and  fishing  nets. — Pollution  or  obstruction  of  waters. 

277.  Mines. — Pollution  of  waters. — Mining  debris  and  deposits. 

278.  Taking  of  private  property  by   polluting  water   or   overflowing 

land. — Condemnation. 

279.  Liability  of  municipal  and  quasi-municipal  or  public  bodies  gen 

erally. — Negligence. — Officers  and  agents. 

280.  Sewers. — Generally. 

281.  Sewers   left   in   unfinished  state. 

282.  Sewers  negligently  constructed  and   operated. 

283.  Disposal  of  sewage. 

284.  Disposal  of  sewage. — Municipalities,  etc. 

285.  Same  subject  continued. 

286.  Same  subject. — Application  of  rule. 

287.  Municipal  liability. — Distinction  between  plan  and  construction. 

— Maintenance  or  use. — Sewage. 

288.  English  decisions. — Public  bodies  generally. — Pollution  of  waters. 

— Sewage. 

289.  Disposal    of    sewage. — Statutory   authority. — When    a   nuisance. 

290.  Disposal   of   sewage. — Statutory  authority. — When   no  nuisance. 

291.  Disposal    of    sewage. — Statutory    authority. — English    decisions. 

292.  Distinction  between  nuisances  of  necessity  in  exercise  of  statu- 

tory powers  and  those  from  secondary  causes. 

328 


Waters.  §  2G5 

293.  Sewage. — Municipality    acquiring    land    beyond    its    limits    for 

sewage  system. 

294.  Discharging  sewage  beyond  jurisdiction. 

295.  Statutory     condition     precedent. — Sewer    obstructing    navigable 

waters. 

296.  Sewage. — Act  creating  nuisance  absolutely  necessary  to  execute 

statutory  power. 

297.  Pollution   of   waters    by   sewage   or   otherwise. — Purifying,    dis- 

infecting and  deodorizing. 

298.  Same   subject. — English  decisions. 

299.  The   Chicago   drainage    case. — Jurisdiction   of    federal   courts. — 

Controversies  between  States. — State  and  federal  law-power  of 
Congress  to  regulate  commerce. — Nuisance  of  a  character  not 
discoverable  by  unassisted  senses. 

300.  Sewage. — Overtaxing  capacity  of  sewer  or  of  stream. — Overflow. 

301.  Sewage. —  Liability  of  occupants  or  owners  of  houses  in  district. 

302.  Sewage  discharged  into  street. 

303.  Pollution  of  waters. — Manufacturing  processes. 


§  265.  Riparian  rights — Generally. — Riparian  rights  are  prop- 
erty rights  within  the  constitution  of  the  United  States  to  the 
extent  that  they  cannot  be  appropriated  by  another  without  due 
compensation.1  This  does  not  mean,  however,  that  a  private  per- 
son has  a  right  of  ownership  in  the  water,  but  a  right  to  its  use,2 
as  a  part  and  parcel  of  the  land,  and  he  is  entitled  to  be  protected 
therein.3     Such  rights  may  be  for  domestic,4  or  beneficial  purposes 

1.  City  of  Mansfield  v.  Balliett,  65  141  Cal.  178,  74  Pac.  762;  Pierson  v. 
Ohio  St.  451,  63  N.  E.  86,  58  L.  P.  A.  Speyer,  178  N.  Y.  279,  78  N.  E.  799, 
628,  given  in  full  in  note  "  Appendix  revg.  81  N.  Y.  Supp.  636,  82  App. 
A"  at  end  of  chap.  14.  See,  also,  Div.  556;  Filbert  v.  Dechert,  22  Pa, 
City   of   Kewanee    v.    Otley,    204   111.  Super.  Ct.  36. 

402,  68  N.  E.  388;    (Grey)    Simmons  Use  for  domestic  purposes  has 

V.    Patterson,    60   N.   J.   Eq.    385,   45  preference    to    use    for    irrigation. 

Atl.  995,  83  Am.  St.  Rep.  642.     See  §  Smith  v.  Corbit,  116  Cal.  587,  48  Pac. 

62,  herein.  725.     Examine  Montrose  Canal  Co.  v. 

2.  Boise  City  Irrigation  Land  Loutsenheiser  Ditch  Co.,  23  Colo. 
Co.  v.  Stewart  (Idaho,  1904),  77  Pac.  233,  48  Pac.  532. 

25.  How    right    acquired    for    do- 

3.  Cline  v.  Stock  (Neb.,  1904),  98  mestic  purposes.  See  Watterson  v. 
N.  W.  454.  See,  also,  note  1  to  this  Saldunbehere,  101  Cal.  107,  35  Pac. 
section.  43. 

4.  Craig    v.    Crafton    Water    Co., 


329 


§  -1  66 


Waters. 


generally,5    for    irrigation,6    mining,    manufacturing    and    other 
purposes.7 

§    266.  Riparian    rights — General   rule. — As    a    general   rule 
every  riparian  proprietor  is  entitled  to  have  the  natural  water 


5.  Dunn  v.  Hamilton,  2  S.  &  McL. 
<Sc.)  356. 

Amount  required  for  benefi- 
cial use  limits  appropriator  of 
water.  See  Union  Mill  &  M.  Co.  v. 
Dangberg,  81  Fed.  73;  Senior  v.  An- 
derson, 115  Cal.  496,  47  Pac.  454; 
Riverside  Water  Co.  v.  Sargent,  112 
Cal.  230,  44  Pac.  560;  Nichols  v.  Mc- 
intosh, 19  Colo.  22,  34  Pac.  278; 
Becker  v.  Marble  Creek  Irrig.  Co.,  15 
Utah,  225,  49  Pac.  892,  1119.  Ex- 
amine McDonald  v.  Lannen,  19  Mont. 
78,  47  Pac.  648. 

6.  Rodgers  v.   Pitt,   129   Fed.  932; 
Hard  v.  Boise  City  Irrigation  &  Ca- 
nal Co.    (Idaho,   1904),   65   L.  R.   A. 
407,  76  Pac.  331;  McCook  Irrigation 
&  Water  Power  Co.  v.  Crews    (Neb., 
1903,  98  N.  W.  996    (holding  that  a 
riparian  owner  has  the  right  to  make 
a  reasonable  use  of  a  stream  flowing 
over  or  along  his  lands  for  the  pur- 
pose of   irrigation.     This  right   is  to 
be  measured  primarily  by  the  amount 
of  water  in  the  stream  available  for 
such    purposes,   the    number    of   per- 
sons who  may  so  use  it,  the  size,  sit- 
uation, and  character  of  the  stream, 
and  the  nature  of  the  region.     In  case 
a  like  use  by  other  riparian   owners 
cannot  be  made,  the  injury  to  a  ripar- 
ian owner  by   reason   of  the   appro- 
priation of  the  water  by  an  irrigation 
enterprise  is  nominal  only.     A  lower 
riparian  owner   cannot  enjoin  an  ir- 
rigation enterprise  by   an  upper   ap- 
propriator under  the  statutes,  merely 


because  his  damages  for  injury  to  his 
riparian  rights  have  not  been  paid. 
His  remedy  is  to  sue  at  law  for  such 
damages.  But  in  case  a  lower  ap- 
propriator under  the  statute  is  ma- 
terially affected  by  diversions  of  wa- 
ter by  upper  riparian  owners,  he  may 
bring  a  suit  in  equity  to  determine 
the  rights  of  all  claimants  to  the  U3e 
of  the  water,  and  to  quiet  his  title 
thereto,  in  which  the  damage  to 
riparian  rights  may  be  ascertained, 
and  due  compensation  awarded.  The 
lower  appropriator  may  not  maintain 
such  a  suit  against  upper  riparian 
owners  without  offering  to  do  equity 
by  paying  whatever  damages  accrue 
to  such  owners  by  reason  of  the  ap- 
propriation. It  will  not  be  presumed 
that  the  damages  in  such  case  are 
nominal  merely)  ;  Cornick  v.  Arthur. 
Tex.  Civ.  App.  73  S.  W.  410. 

Priorities  under  irrigation  act 
of  Colorado.  See  People,  Sterling 
Irrig.  Co.  v.  Downer   ( Colo. ) ,  36  Pac. 

787. 

Relative  rights  for  irrigation; 

prior  and  subsequent  appropriators. 
See  Montana  Co.  v.  Gehring,  75  Fed. 
384,  44  U.  S.  App.  629;  Wells  v. 
Kreyenhagen,  117  Cal.  329,  49  Pac. 
128;  Becker  v.  Marble  Creek  Irrig. 
Co.,  15  Utah,  225,  49  Pac.  892. 

7.  McCarthy  v.  Gaston  Ridge  Mill 
&  Min.  Co.,  144  Cal.  512,  78  Pac.  7; 
Watson  v.  Colusa-Parrot  Mining  & 
Smelting  Co.  (Mont.,  1905),  79  Pac. 
14;   Evans  v.  Bacon.  Wis.,  95  N.  W. 


330 


Waters.  §  266 

of  the  stream  transmitted  to  him,  without  sensible  alteration  in  its 
character  or  quality,  and  any  invasion  of  this  right,  causing  actual 
damage  or  which  is  calculated  to  found  a  claim  which  may  ripen 
into  an  adverse  right,  entitles  the  injured  party  to  the  court's 
intervention.8  So,  every  proprietor  of  the  soil  through  which  a 
stream  passes,  has  a  right  to  have  it  run  in  its  natural  current 
without  diminution  or  obstruction.9  A  land  owner  has  also  the 
right,  even  without  the  use  of  a  prescription,  to  have  the  water 
flow  through  the  natural  channels  and  drains  convenient  to  it.10 
"  The  books  are  full  of  cases  holding  that  equity  jurisdiction  is 
properly  invoked  to  afford  relief  to  a  lower  riparian  owner  where 
an  upper  proprietor  defiles  or  corrupts  a  stream  to  such  a  degree 
as  essentially  to  impair  its  purity  and  prevent  its  use  for  any 
reasonable  and  proper  purpose  to  which  running  water  may  be 
applied.  It  is  the  right  of  every  owner  of  land  over  which  a 
stream  of  water  flows,  to  have  it  flow  in  its  natural  state  and  with 
its  quality  unaffected.  The  right  to  a  stream  of  water  is  as  sacred 
as  a  right  to  the  soil  over  which  it  flows.  It  is  a  part  of  the  free- 
hold, of  which  the  owner  cannot  be  dis-seized  except  by  due  process 
of  law,  and  the  pollution  of  a  stream  constitutes  the  taking  of 
property,  which  may  not  be  done  without  compensation."  u  So  it 
has  been  declared  in  an  Iowa  case  that  the  lower  owner  of  land 
upon  a  stream  has  the  right  to  have  the  water  which  flows  from 
the  land  of  an  upper  owner  in  as  pure  and  wholesome  condition 
ns  a  reasonable  and  proper  use  of  the  stream  by  the  upper  owner 

375;  Young  v.  Bankier  Distillery  Co.  propriators.     See  Benton  v.  Johneox, 

(1893),  A.  C.  691,  69  L.   T.  838,   58  17  Wash.  277,  61  Am.  St.  Rep.  912,  49 

J.   P.   100— H.  L.    (Sc).     See   subse-  Pac.  495,  39  L.  R.  A.   107;     Nevada 

quent    sections    of   this    chapter    and  Ditch  Co.  v.  Bennett,  30  Oreg.  59,  45 

"Appendix  A"  at  end  of  chapter  14.  Pac.  472. 

Relative  rights  of  upper  and  8.  Young  v.  Bankier  Distillery- 
lower  riparian  owners  of  running  Co.  (1893),  A.  C.  691,  69  L.  T.  838, 
streams.  See  Schwab  v.  Beam,  86  58  J.  P.  100 — H.  L.  (Sc).  See 
Fed.  41,  1  Denver  Leg.  Adv.  489.  "Appendix  A"  at  end  of  chapter  14. 

Extent        of        appropriation;  9.  Liles    (Lyles)    v.   Cawthorne,  78 

placer  location.     Schwab  v.  Beam,  Miss.  559,  29  So.  834. 

86  Fed.  41,  1  Denver  Leg.  Adv.  489.  10.  Overton   v.   Sawyer,   46   N.   C. 

Patentee    of    lands    as    appro-  (1  Jones  L.)    308. 

priator;     rights  of  at   common  law  11,.  City  of  Kewanee  v.  Otley,  204 

and  with  relation  to  subsequent  ap-  111.  417,  68  N.  E.  388. 


§2G' 


Waters. 


will  permit.     What  is  a  reasonable  use  must  be  determined  from 
the  circumstances  of  the  case.12 

§  267.  Riparian  rights — Qualification  of  rule — Reasonable 
use. — The  wants  of  agriculture,  manufacturers,  commerce,  inven- 
tion and  of  the  arts  and  sciences  require  that  some  changes  must 
be  tolerated  in  the  flow  of  natural  streams  in  their  adaptation  to 
beneficial  uses;  reasonable  diminution  of  quantity,  temporary  de- 
tention followed  by  release  in  increased  volume,  as  well  as  some 
detraction  from  their  natural  purity,  are  necessary  to  be  sub- 
mitted to  by  the  individual  for  the  greater  good  of  the  public,  but 
the  water  must  not  be  diverted  from  its  channel,  or  so  diminished 
in  its  volume,  or  so  corrupted  and  polluted  as  practically  to  de- 
stroy or  greatly  impair  its  value  to  the  lower  riparian  proprie- 
tors.13 But  whether  the  use  of  a  stream  by  one  riparian  proprietor 
is  reasonable  or  not,  in  view  of  the  rights  of  other  proprietors, 
depends  largely  upon  the  circumstances  of  each  case,  and  it  is 
essentially  a  question  of  fact.14  Again,  the  natural  right  to  have 
the  water  of  a  stream  descend  in  its  pure  state  must  yield  to  the 
equal  right  of  those  above.  It  is  not,  under  all  circumstances,  an 
unreasonable  or  unlawful  use  of  a  stream  to  throw  or  discharge 
into  it  foul  water  or  impure  matter,  and  whether  in  any  given 
case,  such  use  would  be  reasonable  or  not,  is  a  question  for  the 
jury.15  Under  an  Illinois  decision  a  riparian  owner  has  the  right 
to  the  reasonable  use  of  a  stream  in  its  natural  flow  and  purity 
unpolluted  from  sewage,  that  is,  he  is  entitled  to  the  use  and 
enjoyment  of  the  water,  and  to  have  the  same  flow  in  its  natural 
and  accustomed  course  without  corruption  or  diversion,  and  the 
deprivation  of  such  right  without  due  process  of  law  by  such  pol- 

12.  Ferguson  v.  The  Firmenick  bury,  72  Conn.  531,  45  Atl.  154,  48 
Mfg.  Co.,  77  Iowa,  576,  42  N.  W.  448,      L.  R.  A.  691,  77  Am.  St.  Rep.  335. 

14  Am.   St.   Rep.   319.     See  next  fol-  As    to    test    of    reasonableness 

lowing  section  herein.  of  artificial  use  of  water  see  Geh 

13.  Tennessee  Coal,  Iron  &  Rail  len  v.  Knorr,  101  Iowa,  750,  70  N.  W. 
road  Co.  v.  Hamilton,   100  Ala.  253,  757,  36  L.  R.  A.  697. 

14  So.  167,  46  Am.  St.  Rep.  48.     See,  15.  Barnard  v.   Sherley,    135   Ind. 

also,  last  preceding  citation.  547,  34  N.  E.  600,  35  N.  E.  117,  41 

14.  Piatt    Bros.   &    Co.    v.   Water-       Am.  St.  Rep.  454,  24  L.  R.  A.   568- 

575.    See  note  25  to  this  chapter. 

332 


Waters.  §§  268,  269 

lution,  is  a  nuisance  and  constitutes  the  taking  of  property  for 
which  compensation  must  be  made.16 

§  268.  Riparian  rights — Ebb  and  flow  of  tide — Reasonable 
use — Prior  occupation. — Riparian  proprietors,  who  own  land  on 
the  opposite  sides  of  a  water  course,  above  ebb  and  flow  of  tide 
water,  have  a  title  to  the  land  covered  by  the  water,  to  the  thread 
or  centre  of  the  stream  as  it  is  accustomed  to  flow  in  its  natural 
channel.  Each  riparian  proprietor  has  the  right  to  a  reasonable 
use  of  the  water  as  it  flows  along  the  natural  channel  of  the 
stream,  for  domestic,  agricultural  and  manufacturing  purposes, 
provided  in  so  using  it  he  does  not  prejudice  or  injure  the  rights 
of  the  other  proprietors.  So  prior  occupation  of  the  water  in  a 
stream  by  one  riparian  proprietor,  for  the  purpose  of  turning  his 
mill,  does  not  give  him  the  right  to  divert  the  water  from  the  land 
of  the  proprietor  above,  nor  to  throw  the  water  back  upon  him  in 
the  channel  of  the  stream  without  a  grant  or  license  to  do  so  from 
such  proprietor;  or  an  enjoyment  of  such  easement  for  suah  a 
length  of  time  as  will  give  a  right  under  the  statute  of  limita- 
tions.17 

§  269.  Riparian  rights — Reasonable  and  unreasonable  use — 
Convenience  or  necessity  as  to  locality — Pollution  of  waters. — 

The  relative  rights  of  an  upper  and  lower  riparian  proprietor,  the 
one  for  manufacturing  and  the  other  for  domestic  purposes,  has 
been  held  to  depend  upon  whether  such  use  is  reasonable  or  un- 
reasonable under  all  the  circumstances;  and  that  if  the  upper 
proprietor's  use  is  reasonable  in  accordance  with  the  rights  of  all 
riparian  proprietors,  the  lower  proprietor  has  no  remedy ;  so  that, 
whether  or  not  the  throwing  or  discharging  of  waste  or  impure 
matter  into  the  stream  would  be  a  reasonable  use,  must  be  deter- 
mined by  the  jury.  But  where  a  business  is  of  a  private  nature 
and  not  one  in  which  the  general  interest  of  the  public  is  involved, 

16.  City  of  Kewanee  v.  Otley,  204  17.  Hendrick  v.  Cook,  4  Ga.  241. 

111.  402,  68  N.  E.  388.     See  "Appendix  See    (Grey)    Simmons   v.    Patterson, 

A"   in  note  at  end  of  chap.  14,  herein,  60  N.  J.  Eq.  385,  45  Atl.  995,  83  Am. 

as  to  taking  of  property  and  compen-  St.  Rep.  642. 
sation. 

333 


§  270  Waters. 

and  the  location  of  which  is  determined  by  the  question  of  con- 
venience of  its  proprietors,  and  it  is  not  conducted  for  the  develop- 
ment of  the  natural  resources  of  the  land  owned  by  the  proprie- 
tors in  the  neighborhood  of  the  stream,  and  it  is  not  necessary 
that  the  manufacture  should  be  carried  on,  if  at  all,  in  the  local- 
ity where  it  is  conducted  to  the  injury  of  the  lower  riparian  owner, 
the  use  made  by  such  upper  proprietor  in  polluting  the  stream  is 
not  reasonable  where  the  damage  inflicted  is  not  slight,  or  insig- 
nificant or  inappreciable,  but  substantial,  measurable  and  great.18 
But  where  a  work  is  lawful  in  itself,  and  cannot  be  carried  on 
elsewhere  than  where  nature  located  it,  or  where  public  necessity 
requires  it  to.  be,  then  those  liable  to  receive  injury  from  it  have 
a  right  only  to  demand  that  it  shall  be  conducted  with  all  due 
care  so  as  to  give  as  little  annoyance  as  may  be  reasonably  ex- 
pected ;  and  any  injury  that  may  result,  notwithstanding  such 
care  in  the  management  of  the  work,  must  be  borne  without 
compensation.19 

§  270.  Riparian  rights — Qualifications  of  rule — Mining  and 
irrigation — Generally. — "  The  rights  of  a  riparian  owner  in  and 
to  the  use  of  the  water  flowing  by  his  land  are  not  the  same  in  the 
arid  and  mountainous  places  of  the  West  that  they  are  in  the 
States  of  the  East.  These  rights  have  been  altered  in  many  of  the 
Western  States  by  their  constitutions  and  laws,  because  of  the 
totally  different  circumstances  in  which  their  inhabitants  are 
placed,  from  those  that  exist  in  the  States  of.  the  East,  and  such 
alterations  have  been  made  for  the  very  purpose  of  thereby  con- 
tributing to  the  growth  and  prosperity  of  those  States  arising  from 
mining  and  the  cultivation  of  an  otherwise  valueless  soil  by  mean^ 
of  irrigation.  This  court  must  recognize  the  difference  of  climate 
and  soil,  which  render  necessary  these  different  laws  in  the  States 
so  situated." 20  Mr.  Lindley  in  discussing  the  pollution  of 
waters,  etc.,  in  connection  with  mines,  says:  "The  common  law 

18.  Muncie    Pulp    Co.    v.    Koontz,  Am.   St.  Rep.  454,  24  L.  R.  A.  568, 

(Ind.  App.,  1904),  70  N.  E.  999,  per  575.     See  note  25  to  this  chapter. 

Black,  J.  20.  Clark  v.  Wash,  198  U.  S.  Rep. 

1,9.  Barnard    v.    Sherley,    135   Ind.  361,  370. 
547,  34  N.  E.  600,  35  N.  E.  117,  41 

334 


Waters.  §  270 

rule  regulating  riparian  rights  has  not  been  recognized  or 
applied  in  the  Pacific  Sates  and  territories."  This  departure  had 
its  origin  in  the  necessity  for  utilizing  running  streams  for  the 
purpose  of  mining  and  washing  ores.  "  In  all  the  States  and  ter- 
ritories of  the  West  where  mining  is  a  prominent  and  permanent 
industry,  we  find  the  right  of  appropriation  and  the  use  of  run- 
ning water  for  mining  purposes,  to  some  degree  at  least,  well 
recognized  and  established."  21  Mr.  Snyder  in  his  work  on  mines 
says :  "  He  who  first  appropriates  water  and  puts  it  to  a  beneficial 
use,  to  the  extent  so  used,  whether  for  hydraulic  mining  or  for 
propelling  machinery,  acquires  a  superior  right  to  it,  to  the  extent 
that  he  has  put  it  to  a  beneficial  use,  to  the  exclusion  of  any  other 
appropriator,  whether  the  same  is  conveyed  to  his  property 
through  surface  or  sub-surface  channels;  and  he  is  entitled  to  have 
it  flow  without  material  interruption,  and  is  protected  from  dam- 
age by  subsequent  locators  above  or  below  him ;  and  where  he  has 
diverted  it  for  a  particular  claim,  he  may  afterwards  change  the 
place  of  diversion  so  as  to  use  it  on  another  claim,  without  losing 
his  priority  of  right."  22  But  under  the  Georgia  code,  an  upper 
riparian  owner  cannot  lawfully  pollute  or  adulterate  the  water 
of  the  stream  so  as  to  render  it  unfit  for  use  by  a  lower  owner, 
without  being  liable  for  damages.  The  former  has  the  right  to 
use  the  water  while  it  is  on  his  land,  but  not  in  such  manner  as 
to  deprive  the  next  owner  of  the  enjoyment  of  it;  and  if  such 
use,  by  washing  ore  adulterates  it,  and  the  next  owner  is  thereby 
injured,  he  is  entitled  to  damages,  though  the  stream  be  more  use- 
ful for  mining  than  for  domestic  purposes.23  And  under  a  Mon- 
tana decision  the  right  of  one  who  appropriates  water  to  foul  or 
obstruct,  and  to  some  extent  to  diminish  the  quantity  of  water 
in  a  stream,  must  be  determined  by  the  particular  facts  and  cir- 
cumstances of  such  case,  and  may,  where  unavoidable,  be  per- 
mitted to  a  reasonable  extent,  especially  where  the  statute  provides 
that  one  must  so  use  his  own  rights  as  not  to  infringe  upon  the 
rights  of  another.     But  waters  cannot  be  polluted  to  any  greater 

21.  2  Lindley  on  Mines  (2nd  ed.),  22.  Snyder  on  Mines    (Ed.    1902), 

§  841.     See,  also,  discussion  as  to  de-  §  330,  p.  299. 

posit  of  tailings    and   refuse   on   an-  23.  Satterfield   v.    Rowan,    83    Ga. 

other's  land,  id.  §§  843  et  seq.  187,  9  S.  E.  677. 

335 


§270 


Waters. 


extent  than  permitted  by  law.  A  proprietor  acquires  no  title  to 
the  water  but  only  the  right  to  use  the  same,  and  no  person, 
natural  or  artificial,  has  a  right,  directly  or  indirectly,  to  cover  his 
neighbor's  land  with  mining  debris,  sand  or  gravel  or  other  mater- 
ial so  as  to  render  it  valueless,  and  the  doing  of  such  acts  to  such 
an  extent  constitutes  a  nuisance  both  at  the  common  law  and  under 
the  statute.24  In  an  Indiana  case,25  the  court,  per  Howard  J., 
says:  "  The  general  rule  in  England  is,  that  a  person  discharging 
noxious  substances  into  a  stream  will  be  liable  to  the  riparian 
owners  lower  down  for  any  damage  occasioned;  yet  some  excep- 
tion seems  to  be  made  in  favor  of  mining  operations.  Bainbridge 26 
says :  '  It  should  also  be  remembered  that  the  prosperity  of  a 
mining  country  and  its  inhabitants  depends  upon  the  successful 
efforts  of  the  adventurer.  The  value  of  all  property  in  the  vicinity 
of  mines  is  inseparably  associated  with  the  spirit  of  adventure. 
The  miner,  therefore,  should  not  be  harassed  in  his  operations  by 


24.  Chessman  v.  Hale,  Mont.,  1905, 
79  Pac.  254,  Civ.  Code,  §§  1880,  4550, 
4605,  Code  Civ.  Proc.  §  1300. 

Right  to  appropriate  water 
for  irrigation  purposes.  See  note 
98  Am.  Dec.  543-545. 

Rights  acquired  by  prior  ap- 
propriator  of  waters  of  stream.  See 
note  43  Am.  Dec.  269-283. 

25.  Barnard  v.  Sherley,  135  Ind. 
547,  555,  34  N.  E.  600,  35  N.  E.  117, 
24  L.  R.  A.  568,  41  Am.  St.  Rep.  454. 
See  second  trial  report  of  this  case, 
151  Ind.  161,  41  L.  R.  A.  737,  47  N. 
F.  67  (holding  that  where  the  special 
findings  in  an  action  for  damages  on 
account  of  the  pollution  by  sewage 
from  a  sanitarium  of  a  spring  branch 
mnning  through  the  lands  of  plain- 
tiff contain  statements  to  the  effect 
that  the  water  in  such  stream,  after 
receiving  the  sewage,  was  compara- 
tively harmless,  and  that  plaintiff 
had  been  able  to  sell  her  lands  at  a 
price  equal  to  that  received  for  lands 


of  a  similar  character  in  other  por- 
tions of  the  city  in  which  plaintiff's 
lands  were  situated,  neutralize  the 
statement  in  the  finding  that  she  was 
damaged;  and  also  holding  that  where 
the  owner  of  a  sanitarium  allows  wa- 
ter from  an  artesian  well  which  has 
been  used  in  such  sanitarium  for 
bathing,  to  flow  into  a  stream  run- 
ning through  the  lands  of  an  adjoin- 
ing landowner,  the  damage  sustained 
thereby  by  such  landowner  is  dam- 
rnurr  absque  injuria  where  such 
stream  was  the  only  natural  and 
available  outlet.  "  The  principles 
laid  down,  exemplified  and  eluci- 
dated when  this  case  was  in  this 
court  before,  more  than  warrant  us 
in  adjudging  that  the  court  erred  in 
its  conclusions  of  law.  We  need  not 
repeat  what  was  then  said,  but  refer 
to  it  as  the  law  of  this  case,"  per 
McCabe,  C.  J. 

26.  Law  of  Mines   (3rd  ed.),  517. 


336 


Waters.  §  270 

claims  of  an  unsubstantial  or  imaginary  character;  for  the  bene- 
fits he  confers  generally  far  surpass  the  injuries  he  may  commit.' 
In  '  Leading  Cases  on  Mines,'27  the  exception  as  to  mineral  products 
is  also  made.  '  But  a  right  to  throw  refuse  from  mines  into  a 
natural  stream,  or  discharge  into  it  water  which  has  been  used  for 
the  precipitation  of  minerals  and  rendered  noxious,  may  be 
acquired  by  prescription,  custom  or  user.  The  same  rule  applies 
to  smelting  and  washing  processes.'  In  this  country  the  severity 
of  the  English  rule  is  still  further  relaxed :  '  If  one  builds  a  dam 
upon  his  own  premises  and  thus  holds  back  and  accumulates  the 
water  for  his4  benefit,  or  if  he  brings  water  upon  his  premises  into  a 
reservoir,  in  case  the  dam  or  the  banks  of  the  reservoir  give  way 
and  the  lands  of  a  neighbor  are  thus  flooded,  he  is  not  liable  for 
the  damage  without  proof  of  some  fault  or  negligence  on  his 
part.' 28  .  .  .  The  right  to  flowing  water  is  a  right  incident  to 
property  in  land,  and  while  it  is  a  right  common  and  equal  to  all 
through  whose  land  it  runs,  yet,  as  one  of  the  gifts  of  Providence, 
each  proprietor  has  a  right  to  a  just  and  reasonable  use  of  it  as  it 
passes  through  his  land.  What  is  such  a  just  and  reasonable  use 
may  often  be  a  difficult  question  depending  on  various  circum- 
stances.29 Sewage  and  waste  material  may  be  cast  into  streams 
if  material  injury  is  not  thereby  caused.  The  right  of  one  pro- 
prietor to  have  the  stream  descend  to  him  pure,  must  yield  in  a 
reasonable  degree  to  the  right  of  the  upper  proprietors,  whose 
occupation  of  their  own  lands,  and  whose  use  of  the  water  for  mill, 
manufacturing,  domestic,  or  other  purposes,  will  tend  to  make  the 
water  more  or  less  impure.  So  it  is  of  public  importance  that 
proprietors  of  useful  manufactories  should  not  be  held  responsible 
for  slight  injuries,  or  even  some  degree  of  interference  with  agri- 
culture. In  regard  to  some  waste  deposits  in  such  streams,  there 
would  seem  to  be  no  question.  The  uniform  practice,  the  conven- 
ience, and,  in  some  instances,  the  indispensable  necessity,  would 
seem  sufficient  to  decide  such  cases.30     .     .     .     The  natural  right 

27.  Blanchard     &    Weeks'     Notes,  29.  Citing  Elliott  v.  Fitchburg  R. 
721.  R.  Co.,  10  Cush.   (Mass.)    191. 

28.  Citing  Losee  v.   Buchanan,  51  30.  Citing  Gould  Waters,  §  220. 
N.   Y.   476.     See   §§    14,  44,    89,   92, 

herein. 

337 


§  270  Waters. 

to  have  the  water  of  a  stream  descend  in  its  pure  state,  must  yield 
to  the  equal  right  of  those  above.  Their  use  of  the  stream  for  mill 
purposes  for  which  they  may  lawfully  use  it,  will  tend  to  render 
it  more  or  less  impure.  The  water  may  thus  be  rendered  unfit  for 
many  uses  for  which  it  had  before  been  suitable;  but  so  far  as 
that  condition  results  from  a  reasonable  use  of  the  stream,  in 
accordance  with  the  common  right,  the  lower  riparian  proprietor 
Las  no  remedy.  When  the  population  becomes  dense,  and  towns 
or  villages  gather  along  its  banks,  the  stream  naturally  suffers 
still  greater  deterioration.  Against  such  injury,  incident  as  it  is* 
to  the  growth  and  industrial  prosperity  of  the  community,  the  law 
affords  no  redress.  So,  in  cities  and  towns,  with  their  numerous 
inhabitants  and  diversified  business,  with  their  mills,  shops  and 
manufactories,  with  their  streets  and  sewers,  all  the  products  and 
means  of  a  high  civilization,  it  would  be  impossible  that  the  pure 
streams  that  flow  in  from  the  farmsides  should  remain  uncontami- 
nated ;  and  those  that  live  upon  the  lower  banks  of  such  streams 
must,  for  the  general  good,  abide  the  necessary  results  of  such 
causes.31  That  it  is  not,  under  all  circumstances,  an  unreason- 
able or  unlawful  use  of  a  stream  to  throw  or  discharge  into  it 
waste  or  impure  matter ;  and  that  whether  in  any  given  case  such 
use  would  be  reasonable  or  not,  is  a  question  for  the  jury."  32  Mr. 
Kinney,  in  his  work  on  Irrigation,  says :  "Any  use  of  the  stream 
which  defiles  or  corrupts  it  to  such  a  degree  as  to  essentially  im- 
pair its  purity  and  usefulness  for  any  of  the  purposes  to  which  the 
water  is  applied  by  the  prior  appropriator,  is  an  invasion  of  the 
private  rights,  for  which  he  is  entitled  to  a  remedy.  But  the 
natural  right  of  an  appropriator  to  have  the  stream  descend  to 
him  in  its  pure  state  must  yield  in  a  reasonable  degree  to  the 
rights  of  those  who  have  located  above  upon  the  stream  subse- 
quent to  him.  This  is  especially  true  where  the  object  of  his  ap- 
propriation is  that  of  irrigation,  as  it  is  of  public  importance  that 
the  proprietor  of  useful  manufactories  should  be  held  responsible 
only  for  substantial  injury  caused  by  their  works,  and  not  for 
slight  inconveniences  or  occasional  annoyances,  or  even  some  de- 
gree of  interference  with  irrigation  or  agricultural  pursuits.     As 

31.     Citing  Merrifield    v.    City    of  32.  Citing     Angell      Watercourses 

Worcester,  110  Mass.  216.  (7th  ed.),  §  140d. 

338 


Waters.  §§  271,  272 

the  population  grows  more  densa  along  the  streams  in  the  arid 
west,  it  is  becoming  more  and  more  an  impossibility  to  keep  the 
water  of  the  streams  in  their  naturally  pure  condition.  And  when 
an  injunction  is  sought  to  stop  large  and  expensive  works,  which 
cause  the  waters  of  a  stream  to  be  polluted,  it  must  clearly  appear 
that  the  legal  remedy  of  the  prior  appropriator  is  entirely  inade- 
quate and  that  he  will  suffer  irreparable  injury  from  the  continu- 
ance of  the  pollution  to  such  an  extent  that  his  vested  rights  are  in 
jeopardy."  33 

§  271.  Riparian  rights — Artificial  water  course. — A  water 
course,  though  artificial,  may  have  been  originally  made  under 
such  circumstances  and  have  been  so  used  as  to  give  all  the  rights 
that  the  riparian  proprietors  would  have  had  if  it  had  been  a 
natural  stream ;  and,  therefore,  in  an  action  by  one  riparian  pro- 
prietor against  another  for  the  pollution  and  diversion  of  a  water 
course,  it  is  a  misdirection  to  tell  the  jury  that  if  the  stream 
were  artificial  and  made  by  the  hand  of  man,  the  plaintiff  could 
have  no  cause  of  action.34 

§  272.  Rights  as  to  navigable  waters — Generally. — A  navig- 
able river  is  a  great  public  highway  in  which  the  people  of  the 
State  have  a  paramount  and  controlling  right,  consisting  chiefly  of 
a  right  of  property  in  the  soil  and  a  right  to  the  use  of  the  water 
flowing  over  it  for  the  purposes  of  transportation  and  commercial 
intercourse.  This  right  of  the  State  is  subject,  however,  to  rights 
surrendered  to  the  general  government,  and  the  State  may  grant 
the  soil  to  an  individual  subject  to  the  paramount  right  of  the 
people  to  a  use  of  the  highway,  but  a  right  to  the  use  of  the  navig- 
able waters  is  inalienable.  Great  water  highways  are  governed  by 
the  same  general  rules  applicable  to  highways  on  land.33 

33.  Kinney  on  Irrigation  (Ed.  35.  People  v.  Gold  Run  Ditch  & 
1894),  §  250,  pp.  401,  402.                           Mining  Co.,  66  Cal.  138,  56  Am.  Rep. 

Common   law  doctrine   of   ripa^  80,   4   Pac.   1152.     See  §§   63,  212   c< 

rian  rights  not  made  inapplicable  by  seq.,  herein. 

necessity   of    irrigation.     See    Benton  Navigable      stream      a     public 

v.  Johncox,  17  Wash.  277,  61  Am.  St.  highway  and  public  place.     State  v. 

Rep.  912,   39   L.   R.   A.   107,   49   Pac.  Wabash  Paper  Co.,  21  Ind.  App.  167, 

495.  1  Repr.  234,  51  N.  E.  949,  48  N.  E. 

34.  Sutcliffe  v.  Booth,  32  L.  J.  Q.  653. 

B.  N.  S.  136.  As    to    essentials    and    test    oi 

339 


273 


Wateks. 


§  273.   Obstruction  of  navigable  waters — A  State  cannot  seri- 


navigability,  see  St.  Anthony  Falls 
Water  Power  Co.  v.  St.  Paul  Water 
Comm'rs,  168  U.  S.  349,  18  Sup.  Ct. 
157.  42  L.  Ed.  ;  The  Daniel  Ball,  10 
Wall.  (U.  S.)  557;  Manigault  v.  S. 
M.  Ward  &  Co.,  123  Fed.  707;Chis- 
olm  v.  Caines,  67  Fed.  285;  Smith  v. 
Fonda,  64  Miss.  551,  1  So.  757;  State 
v.  Twiford,  136  N.  C.  603,  48  S.  E. 
586;  Heyward  v.  Farmers  Min.  Co., 
42  S.  C.  138,  20  S.  E.  64,  28  L.  R.  A. 
53,  19  S.  E.  963,  28  L.  R.  A.  42;  Web- 
ster v.  Harris,  111  Tenn.  668.  59  L. 
R.  A.  324,  69  S.  W.  782. 

What  are  navigable  waters. 
See  Cardwell  v.  American  River 
Bridge  Co.,  113  U.  S.  205,  28  L.  Ed. 
959,  5  Sup.  Ct.  423;  Escanaba  Co.  v. 
Chicago,  107  U.  S.  678;  Georgetown 
v.  Alexandria  Canal  Co.,  12  Pet.  (U. 
S.)  91;  Rundle  v.  Delaware  &  R.  Ca- 
nal Co.,  14  How.  (U.  S.)  80;  The 
Montello,  11  Wall.  (U.  S.)  411; 
Chisolm  v.  Caines,  67  Fed.  285;  Law- 
ton  v.  Connor,  40  Fed.  480,  7  L.  R. 
A.  55;  Wallamet  Iron  Bridge  Co.  v. 
Hatch,  9  Sawy.  (U.  S.  C.  C.)  643,  19 
Fed.  347 ;  Olive  v.  State,  86  Ala.  88 ; 
Sullivan  v.  Spotswood,  82  Ala.  163, 
2  So.  716;  Miller  &  Lox  v.  Enter- 
prise Canal  &  Land  Co.,  142  Cal.  208, 
75  Pac.  770;  Goodwill  v.  Bossier 
Parish,  38  La.  Ann.  752;  Woodman 
v.  Pitman,  79  Me.  456,  10  Atl.  321; 
Crookston  Waterworks  Power  & 
Light  Co.  v.  Sprague,  91  Minn.  461, 
98  N.  W.  347,  99  N.  W.  420,  under 
Gen.  Stat.  1894,  §  2385;*  State  v. 
Baum,  128  N.  C.  600,  38  S.  E.  900; 
Hodges  v.  Williams,  95  N.  C.  33; 
Halloek  v.  Suitor,  37  Oreg.  9,  60  Pac 
384;  Webster  v.Harris,  111  Tenn.  668. 
69  S.  W.  782,  59  L.  R.  A.  324 ;  South- 


ern Ry.  Co.  v.  Ferguson,  105  Tenn. 
562,  59  S.  W.  343;  Monroe  Mill  Co. 
v.  Menzel,  35  Wash.  487,  77  Pac. 
813;  Willow  'River  Club  Co.  v. 
Wade,  100  Wis.  86,  76  N.  W.  273,  42 
L.  R.  A.  305;  Falls  Mfg.  Co.  v. 
Oconto  River  Improvement  Co.,  87 
Wis.  134,  58  N.  W.  257. 

What  are  not  navigable 
waters.  See  Leovy  v.  United  States, 
177  U.  S.  621,  20  Sup.  Ct.  797,  44  L. 
Ed.  914,  rev'g  34  C.  C.  A.  392,  92 
Fed.  344;  United  States  v.  Rio 
Grande  Dam  &  I.  Co.,  174  U.  S.  690, 
19  Sup.  Ct.  770,  43  L.  Ed.  1136,  rev'g 
9  X.  M.  292,  51  Pac.  674;  Man- 
igault v.  S.  M.  Ward  &  Co.,  123 
Fed.  707;  Toledo  Shooting  Co.  v. 
Erie  Shooting  Club,  33  C.  C.  A.  233, 
62  U.  S.  App.  644,  90  Fed.  680;  Bay- 
zer  v.  McMillan,  105  Ala.  395,  16  So. 
923;  Morrison  Bros.  &  Co.  v.  Cole- 
man, 87  Ala.  655,  5  L.  R.  A.  384; 
People,  Ricks  Water  Co.  v.  Elk  River 
Mill  &  L.  Co.,  107  Cal.  221,  40  Pac. 
531;  Ligare  v.  Chicago,  M.  &  N.  R. 
Co.,  166  111.  249,  46  N.  E.  803 ;  Mur- 
ray v.  Preston,  21  Ky.  L.  Rep.  72, 
50  S.  W.  1095;  Bendick  v.  Scobel, 
107  La.  242,  31  So.  703;  Baldwin  v. 
Erie  Shooting  Club,  127  Mich.  659, 
8  Det.  Leg.  N.  535,  87  N.  W.  59 
(bay  or  arm  of  great  lakes)  ;  Haines 
v.  Hall,  17  Oreg.  165,  3  L.  R.  A.  609; 
Griffith  v.  Holmes,  23  Wash.  347,  63 
Pac.  239;  East  Hoquiam  Boom  &  L. 
Co.  v.  Neeson,  20  Wash.  142,  54  Pac. 
100. 

Stream  to  be  navigable  in 
legal  sense  must  be  of  such  a  char- 
acter as  to  be  useful  to  the  public 
as  a  channel  of  travel  and  commerce. 
Neaderhouser  v.    State,   28   Ind.    (28 


340 


"Waters. 


§273 


ously  obstruct  the  navigation  of  those  streams  which  are  channels 


Harr.)    258.     See  Weise  v.  Smith,  3 
Oreg.  445,  8  Am.  Rep.  621. 

The  term  "  navigable  -waters 
of  the  United  States "  has  refer- 
ence to  commerce  of  a  substantial 
and  permanent  nature  to  be  con- 
ducted thereon.  Leovy  v.  United 
States,  177  U.  S.  621,  632,  per  Shiras, 
J.,  reviewing  decisions. 

Channel  of  slough  of  the  sea 
may  be  navigable  in  a  legal  sense 
where  the  tide  ebbs  and  flows  therein 
twice  each  day,  and  during  such 
period  the  channel  can  be  and  is  used 
as  a  public  highway  for  boats,  scow3 
and  other  ordinary  modes  of  water 
transportation  for  general  commer- 
cial purposes,  and  especially  for  raft- 
ing, booming,  and  floating  and  tow- 
ing of  logs,  so  that  navigation  cannot 
be  obstructed  therein.  The  fact  that 
the  State  has  sold  the  bed  of  such 
slough  to  a  private  person  confers  no 
right  upon  him  to  obstruct  such  nav- 
igable waters  so  as  to  interfere  with 
tne  rights  of  the  public  therein,  and 
a  person  specially  damaged  by  such 
obstruction  is  entitled  to  relief  b\ 
injunction.  Dawson  v.  McMillan, 
34  Wash.  269,  75  Pac.  807. 

That  title  or  fee  in  State  as 
to  soil  of  navigable  waters,  see  Mo- 
bile Transp.  Co.  v.  City  of  Mobile,  187 
U.  S.  479,  47  L.  Ed.  266,  23  Sup.  Ct. 
170,  aff'g  128  Ala.  335,  30  So.  645; 
Shively  v.  Bowlby,  152  U.  S.  1,  14 
Sup.  Ct.  548,  38  L.  Ed.  33;  Illinois 
C.  R.  Co.  v.  Illinois,  146  U.  S.  387. 
36  L.  Ed.  1018,  13  Sup.  Ct.  110,  47 
Alb.  L.  J.  129;  Martin  v.  Waddell. 
16  Pet.  (U.  S.)  367;  Smith  v.  Mary- 
land, 18  How.  (U.  S.)  71;  Den  v. 
Jersey  City,  15  How.  (U.  S.)  426; 
Weber  v.  Harbor  Comm'rs,  18  Wall. 


(U.  S.)   57;  Leverick  v.  City  of  Mo- 
bile,  110  Fed.  170;  Mission  Rock  Co. 
v.  United  States,  109  Fed.  763,  48  C. 
C.   A.   641;      Mobile   Transp.    Co.    v. 
City  of  Mobile,  128  Ala.  335,  30  So. 
645,  aff'd  187  U.  S.  479    (as  to  title 
of  Alabama  to  land  below  high  water 
mark    see,    also,    City    of    Mobile    v. 
Sullivan   Timber   Co.,    129   Fed.   298, 
62  C.  C.  A.  412)  ;  San  Francisco  Sav. 
Union  v.  Petroleum  &  Min.  Co.,  144 
Cal.  134,  77  Pac.  823 ;   Chicago  Tran- 
sit   Co.    v.    Campbell,    110    111.    App. 
366;   People  v.  Silberwood,  110  Mich. 
103,   3  Det.  L.  N.  302,  32  L.  R.  A. 
694,    67    N.    W.    1087     (Lake   Erie); 
Lamprey  v.  State,   52  Minn.   181,  47 
Alb.  L.  J.  204,  18  L.  R.  A.  670,  53  N. 
W.     1139     (Lake);      State,    Citizens 
Electric  L.   &  P.   Co.  v.   Longfellow, 
169  Mo.  109,  69  S.  W.  374;   Simpson 
v.  Moorehead,   65   N.   J.   Eq.   623,   56 
Atl.   887;    Amos   v.   Norcross,  58,   N. 
J.   Eq.    256,   43    Atl.    195;    WoodclifF 
Land  Imp.  Co.  v.  New  Jersey  Shore 
Line     R.     Co.      (N.     J.),     60     Atl. 
44;  Simmons    v.    City    of    Patterson, 
60  N.  J.  Eq.  385,  48  L.  R.  A.  717,  45 
Atl.  995;  City  of  New  York,  In  re, 
168   N.  Y.   134,  61   N.  E.   158;  Trus- 
tees, etc.,  of  Brookhaven  v.  Smith,  98 
App.   Div.  212,   90  N.  Y.  Supp.  646; 
Muckle   v.    Good,    45    Oreg.    230,    77 
Pac.  743;  New  York,  N.  H.   &  Hfd. 
R.   Co.   v.   Horgan,   25    R.   I.   408,   56 
Atl.    179;    Webster     v.     Harris,    111 
Tenn.  668,  59  L.  R.  A.  324,  69  S.  W. 
782;      Taylor  v.   Commonwealth,    102 
Va.  759,  47  S.  E.  875;  Illinois  Steel 
Co.  v.  Bilot,  109  Wis.  418,  84  N.  W. 
855,  85  N.  W.  402,  83  Am.  St.  Rep. 
905;  Nash  v.  Newton,  30  N.  B.  610. 
(Fee  in  crown.) 
Tidelands  of  territories;   para- 


341 


§  273 


Waters. 


of  inter-State  trade,  as  Congress  has  interfered  to  regulate  corn- 


mount  title  in  United  States.       See 
Carroll  v.  Price,  81  Fed.  137. 

Sea  adjoining  New  York  and 
New  Jersey;  as  to  rights  of  fed- 
eral government  and  of  States,  see, 
generally,  Hamburg  American  Steam- 
ship Co.  v.  Grube,  196  U.  S.  407. 

As  to  rights  of  riparian  or 
shore  owners — navigable  waters, 
see  Illinois  C.  R.  Co.  v.  Illinois,  146 
U.  S.  387,  36  L.  Ed.  1018,  13  Sup.  Ct. 
1101,  47  Alb.  L.  J.  129;  Whitehurst 
v.  McDonald,  52  Fed.  633,  8  U.  S. 
App.  164,  3  C.  C.  A.  214;  Webb  v. 
Demopolis,  95  Ala.  116,  13  So.  289, 
21  L.  R.  A.  62;  Minneapolis  Mill  Co. 
v.  St.  Paul  Water  Comm'rs,  56 
Minn.  485,  58  N.  W.  33;  Lamprey 
v.  State,  52  Minn.  181,  47  Alb.  L. 
J.  204,  18  L.  R.  A.  670,  53  N.  W. 
1139  (Lake)  ;  Perkins  v.  Adams,  132 
Mo.  131,  33  S.  W.  778;  Attorney- 
Gen'l  v.  Central  R.  Co.  of  New  Jer- 
sey, N.  J.  Eq.  ,  59  Atl.  348 
(under  wharf  act  1851,  Gen.  Stat.  pp. 
3753,  3756);  Sage  v.  New  York,  154 
X.  Y.  61,  38  L.  R.  A.  C06,  47  X.  E. 
1096,  30  Chicago  Leg.  X.  89,  aff'g  10 
App.  Div.  294,  41  X.  Y.  Supp.  938; 
State  v.  Twiford,  136  X.  C.  603,  48 
S.  E.  586;  Pollock  v.  Ship  Bldg.  Co., 
56  Ohio  St.  655,  47  X.  E.  582,  38 
Ohio  L.  J.  117;  Gawn  v.  Wilson,  9 
Ohio  S.  &  C.  P.  Dec.  683,  7  Ohio  X. 
P.  33;  Webster  v.  Harris,  111  Tenn. 
668,  59  L.  R.  A.  324..  69  S.  W.  782; 
Re  Provincial  Fisheries,  26  Can.  S. 
C.  444.  (Great  lakes  and  navigable 
rivers. ) 

As  to  riparian  owner's  para- 
mount and  qualified  right  of 
passage  on  navigable  stream,  see 
Coyne  v.   Mississippi   &   R.   R.   Boom 


Co.,    72   Minn.   533,   71   Am.   St.   Rep. 
508,  75  X.  W.  74C,  41  L.  R.  A.  494. 

"  Concurrent  jurisdiction  "  or 
control  under  acts  of  congress  con- 
strued, see  Roberts  v.  Fullerton,  117 
Wis.  222,  03  X.   W.   1111. 

That  navigation  and  com- 
merce paramount  rights,  see  St. 
Anthony  Falls  Water  Power  Co.  v. 
St.  Paul's  Water  Comm'rs,  168  U.  S. 
349,  18  Sup.  Ct.  157,  42  L.  Ed.  497 ; 
Mission  Rock  Co.  v.  United  States, 
109  Fed.  763,  48  C.  C.  A.  641;  Chis- 
olm  v.  Caines,  67  Fed.  285;  People 
v.  Silverwood,  110  Mich.  103,  3  Det. 
L.  X.  302,  32  L.  R.  A.  694,  67  X.  W. 
1087  (Lake  Erie);  Sage  v.  Xew 
York,  154  X.  Y.  61,  38  L.  R.  A.  606, 
47  X.  E.  1096,  30  Chicago  Leg.  N.  89, 
aff'g  10  App.  Div.  294,  41  N.  Y.  Supp. 
938;  Pollock  v.  Cleveland  Ship  Bldg. 
Co.,  56  Ohio  St.  655,  47  N.  E.  582, 
38  Ohio  L.  J.  117.  See  as  to  public- 
rights  generally  Trustees,  etc.,  of 
Brookhaven  v.  Smith,  98  App.  Div. 
212,  90  X.  Y.  Supp.  646;  State  v. 
Twiford,  136  X.  C.  603,  48  S.  E.  586; 
Webster  v.  Harris,  111  Tenn.  668, 
69  S.  W.  782,  59  L.  R.  A.  324. 

That  navigable  waters  for- 
ever free  in  United  States  to  citi- 
zens, see  Cardwell  v.  American  River 
Bridge  Co.,  113  U.  S.  205,  28  L.  Ed. 
959,  5  Sup.  Ct.  23;  Leverich  v.  City 
of  Mobile,  110  Fed.  170.  But  exam- 
ine Pennsylvania  v.  Wheeling,  etc., 
Bridge  Co.,  18  How.  (U.  S.)  421,  15 
L.  Ed.  435. 

Right    of    public    to    use    tide- 
lands.     See  Rhode  Island  Motor  Co. 
v.    City   of    Providence    (R.    I.),  55 
Atl.   696. 


342 


Waters. 


§273 


merce  upon  them.36  And  where  Congress,  exercising  its  power  to 
declare  what  constitute  obstructions  to  navigable  waters,  has  pro- 
hibited the  putting  of  certain  matter  into  streams  which  will  be 
carried  in  suspension  into  the  ocean,  the  doing  of  such  prohibited 
acts  will  be  enjoined.37  But  obstructions  and  nuisances  of  navig- 
able streams,  even  though  offenses  against  a  State,  are  not  siuch 
against  the  United  States  in  the  absence  of  a  direct  statute  bring- 
ing such  offenses  within  the  scope  of  its  laws.38  Since  those  using 
a  public  navigable  stream  as  a  highway  for  vessels  have  the  pri- 
mary and  paramount  right  to  it,  every  hindrance  to  the  free  pas- 
sage of  vessels  is  prima  facie  a  nuisance.39  But  navigation  must 
be  materially  interrupted  to  constitute  a  nuisance,40  and  the  ques- 
tion of  nuisance  or  obstruction  rests  upon  fixed  laws.41  Amongst 
obstructions  in  navigable  rivers*  which  constitute  nuisances  are  nets 
in  the  channel  ;42  a  floating  elevator  ;43  an  abandoned  and  sunken 
vessel;44  a  shanty  or  jo-boat  located  below  high-water  mark;45  a 


36.  Depew  v.  The  Board  of  Trus 
tees  of  the  Erie  &  Wahash  Canal,  5 
Ind.  8,  11. 

37.  United  States  v.  North  Broom- 
field  Gravel  Min.  Co.,  81  Fed.  243. 
See  U.  S.  Stat,  at  L.  c.  496,  p.  209; 
United  Alkali  Co.  v.  Simpson,  63  L. 
J.  M.  C.  141  (1894)  2  Q.  B.  116,  42 
Wkly.  Rep.  509,  58  J.  P.  607,  71  L. 
T.  Rep.  N.  S.  258,  10  R.  235. 

38.  United  States  v.  Bellingham 
Bay  Boom  Co.,  81  Fed.  658,  26  C.  C. 
A.  547,  48  U.  S.  App.  443.  See,  also, 
Williamette  Iron  Bridge  Co.  v. 
Hatch,  125  U.  S.  1,  31  L.  Ed.  629,  8 
Sup.  Ct.  811,  per  Bradley,  J. 

39.  Georgetown  v.  Alexandria  Ca- 
nal Co.,  12  Pet.  (U.  S.)  91;  Blanch- 
ard  v.  Western  Un.  Tel.  Co.,  60  N. 
Y.  510,  1  Am.  Elec.  Cas.  176,  rev'g 
67  Barb.  (N.  Y.)  228,  3  T.  &  C.  775. 
See  last  preceding  section  herein  and 
note. 

Any  obstruction  of  navigation 
is  nuisance.  Georgetown  v.  Alexan- 
dria Canal  Co.,  12  Pet.   (U.  S.)  91. 


40.  Woodman  v.  Pitman,  79  Me. 
456,  10  Atl.  351,  and  cases  cited. 

41.  Yates  v.  Milwaukee,  10  Wall. 
(U.  S.)    497,   19  L.  Ed.  984. 

42.  Reyburn  v.  Sawyer,  135  N.  C. 
328,  47  S.  E.  761,  65  L.  R.  A.  930. 

43.  2  Hawk.  P.  C.  C.  7,  §  11;  Neil 
v.  Henry,  Meigs  (Tenn.),  17,  33  Am. 
Dec.  125. 

44.  Detroit  Water  Comm'rs  v.  De- 
troit, 117  Mich.  458,  76  N.  W.  70,  5 
Det.  L.  N.  305.  See  McLean  v. 
Matthews,  7  111.  App.  599.  But  ex- 
amine Cummins  v.  Spruance,  4  Harr. 
(Del.)  315;  King  v.  Watts,  2  Esp. 
675. 

City  not  liable  for  non-re- 
moval of  snnken  vessel  when  not 
compelled  to  remove  obstructions 
from  navigable  waters,  nor  to  enforce 
an  ordinance  providing  for  such  re- 
moval. Coonley  v.  Albany,  132  N. 
Y.  145,  30  N.  E.  382,  43  N.  Y.  St.  R. 
549. 

45.  Dzik  v.  Bigelow  (Pa.  C.  P.), 
27  Pitts.  L.  J.  N.  S.  360 


343 


§  273  Waters. 

floating  storehouse  ;46  a  bridge  constructed  without  legal  authority 
for  a  private  purpose;47  a  boom  for  logs  constructed  across  a  nav- 
igable river  without  legislative  authority  even  though  a  swing 
boom  is  attached  ;48  and  an  obstruction  which  prevents  floating 
logs.49  It  also  constitutes  an  indictable  nuisance  to  obstruct  navig- 
able water  by  driving  down  stakes  two  and  a  half  feet  apart  with 
their  tops  rising  three  or  four  feet  above  the  surface  of  the  water 
with  a  gate  near  the  centre  of  the  stream  kept  locked  so  as  to 
exclude  the  public  from  using  the  waterway.  The  question  of  nav- 
igability of  a  stream  is,  however,  ordinarily  one  for  the  jury,  and 
the  capability  of  its  being  used  for  the  purposes  of  trade  and 
travel  in  the  usual  and  ordinary  modes  is  the  test  and  not  the  extent 
and  manner  of  such  use.  Hie  control  of  navigable  waters  be- 
longs to  the  public  and  is  not  appurtenant  to  the  owner  of  the 
shore.50  The  public  have  a  right  of  way  in  navigable  streams 
within  the  State,  which  right  cannot  be  materially  interrupted  or 
interferred  with  by  the  owners  of  the  banks  of  such  streams.51 
But  an  encroachmnt  on  the  banks  of  a  navigable  river  is  not 
necessarily  a  nuisance,  and  the  jury  ought,  on  the  facts  of  the 
case,  to  say  whether  the  public  are  in  any  way  inconvenienced, 
for  if  they  are  not,  then  it  is  not  a  nuisance.  This  rule  applies  to 
buildings  and  embankments  along  the  side  of  a  river  parallel  with 
its  banks  and  projecting  into  the  stream.52  It  is  held  in  an  English 
case  that  that  which  is  not  a  nuisance  at  the  time  it  was  done,  can- 
not become  so  by  length  of  time  and  that  this  rule  applies  to  butts 
or  heaps  of  stone  made  use  of  in  throwing  and  landing  nets  which 
had  been  in  a  river  navigable  at  the  time  of  suit  for  a  time  before 
the  memory  of  man  ;  and  that  the  presumption  was  that  at  the  time 

46.  Wetmore  v.  Atlantic  White  50.  State  v.  Twiford,  136  N.  C. 
Lead  Co.,  37  Barb.    (N.  Y.)    70.  603,  48  S.  E.  586;  State  v.  Narrows 

47.  People,  Howell  v.  Jessup,  28  Island  Club,  100  N.  C.  477,  5  S.  E. 
App.  Div.  524,  51  N.  Y.  Supp.  228.  411,  6  Am.  St.  Rep.  618.  See  Harlan 
See  §  274,  herein,  as  to  bridges.  &  H.  Co.  v.  Paschall,  5  Del.  Ch.  435. 

48.  Pascagoula  Boom  Co.  v.  Dick-  51.  Cox  v.  The  State,  3  Blackf. 
son,  77  Miss.  587,  28  So.  724;  Const.  (Ind.)   193. 

§  81.       See,  also,  Union  Mill  Co.  v.  52.  King  v.  Shepard,  1  L.  J.  O.  S. 

Shores,  66  Wis.  476.  K.  B.  45,  25  R.  R.  559. 

49.  Spokane  Mill  Co.  v.  Post,   50 
Fed.  429. 

344 


Wateks.  §  274 

they  were  built  the  river  was  not  navigable,  and  therefore  that 
they  were  not  a  nuisance.53  An  obstruction  of  a  navigable  stream 
is  not  a  nuisance  where  it  is  merely  temporary  and  for  the  pur- 
pose of  remodeling  a  defective  lock  in  a  dam.54 

§  274.  Bridges. — Subject  to  limitations  existing  or  imposed 
in  relation  to  navigable  waters  by  federal  or  State  constitutions 
or  by  federal  laws  and  until  the  power  of  Congress  over  navigable 
waters  and  to  regulate  commerce  is  called  into  action,  a  State  has 
power  to  authorize  the  erection,  construction  and  maintenance  of 
bridges  over  navigable  waters  within  the  State.  Such  erection  so 
authorized,  should  not,  however,  materially  obstruct  navigation. 
Navigable  waters  within  a  State  are  both  State  and  national  in 
their  character  and  subject  to  the  paramount  control  of  the  gen- 
eral government  when  through  Congress  it  chooses  to  exercise  such 
authority.  This  rule  is  in  harmony  with  that  which  permits  Con- 
gress either  of  itself  or  by  joint  action  with  a  State,  to  authorize 
the  construction  of  bridges  over  navigable  waters  and  also  with 
that  which  recognizes  or  has  recognized  bridges  between  States  as 
being  lawfully  constructed  under  the  concurrent  authority  of  the 
States  interested.55  In  a  case  in  the  United  States  Supreme  Court,5* 

53.  King  v.  Bell,  1  L.  J.  O.  S.  K.  iainette  Iron  Bridge  Co.  v.  Hatch,  125 
B.  42.  U.  S.  1,  31  L.  Ed.  629,  8  Sup.  Ct.  1 

54.  State  v.  Charleston  Light  &  (State  has  plenary  power  until  Con- 
Water  Co.,  68  S.  C.  540,  47  S.  E.  979.  gress  acts  and  Congress  not  pre- 
Examine  Northern  Transp.  Co.  v.  eluded  by  act  of  State  or  individuals 
Chicago,  99  U.  S.  635,  25  L.  Ed.  from  assuming  control  and  abating 
336 ;  Green  Nav.  Co.  v.  Chesapeake,  obstructions  or  preventing  others )  ; 
etc.,  Co.,  88  Ky.  1,  10  Ky.  L.  R.  625,  Hamilton  v.  Vicksburg,  Shreveport  & 
10  S.  W.  6.  Pac.  Ed.,  119  U.  S.  281    ( reconstruct- 

55.  Covington  &  Cincinnati  Bridge  ing  bridge)  ;  Dietrich  v.  Schreman, 
Co.  v.  Kentucky,  154  U.  S.  204,  14  117  Mich.  298,  75  N.  W.  618  (only 
Sup.  Ct.  1087,  38  L.  Ed.  962.  Point  limitations  are  State  and  federal  con- 
(1)  minority  opinion  concurring  in  stitution  and  federal  laws);  State  v. 
result.  Luxton  v.  North  River  Bridge  Leighton,  83  Me.  419,  22  Atl.  380; 
Co.,  153  U.  S.  525,  38  L.  Ed.  808,  14  Baltimore  v.  Stole,  52  Md.  435  (con- 
Sup.  Ct.  891  (Congress  may  create  struction  of  legislative  act  not  desig- 
corporation  to  build  bridge  across  nating  size  of  draw  of  bridge );  Dover 
navigable  river  between  two  states  v.  Portsmouth  Bridge,  17  N.  H.  200 
and  statute  is  constitutional)  ;  Will-  (State  may  authorize,  if  powers  and 

345 


§274 


AYaters. 


it  is  said :  "In  that  case57  we  recognized  the  doctrine  as  long  estab- 
lished that  the  authority  of  a  State  over  navigable  waters  entirely 
within  its  limits  was  plenary,  subject  only  to  such  action  as  Con- 
gress may  take  in  execution  of  its  power  under  the  constitution  to 
regulate  commerce  among  the  several  States.  After  referring  to 
Lake  Shore  and  Michigan  Railway  v.  Ohio,58  we  said  that  if  Con- 
gress had  intended  by  its  legislation,  prior  to  that  decision,  to 
assert  the  power  to  take  under  national  control,  for  every  purpose, 
and  to  the  fullest  possible  extent,  the  erection  of  structures  in  the 
navigable  waters  of  the  United  States  that  were  wholly  within  the 
limits  of  the  respective  States,  and  to  supersede  entirely  the 
authority  which  the  States,  in  the  absence  of  any  action  by  Con- 
gress, have  in  such  matters,  such  a  radical  departure  from  the 
previous  policy  of  the  government  would  have  been  manifested  by 
clear  and  exrjlicit  language.  In  the  absence  of  such  language  it 
should  not  be  assumed  that  any  such  departure  was  intended.     AVe 


action  of  United  States  interpose  no 
objection)  ;  People  v.  Kelly,  76  N. 
Y.  475  (Congress  may  authorize 
construction  and  determine  extent  of 
interference  and  devolve  upon  secre- 
tary of  war  to  approve  or  prescribe 
plan ) . 

The  power  of  Congress  to  reg- 
ulate navigable  waters"  not  ex- 
pressly granted  in  constitution,  but 
is  a  power  incidental  to  express 
'  power  to  regulate  commerce  with 
foreign  nations,  among  the  several 
States  and  with  the  Indian  tribes;' 
and  with  reference  to  which  the  ob- 
servation was  made  by  Chief  Justice 
Marshall,  that  'it  is  not  intended  to 
say  that  these  words  comprehend 
that  commerce  which  is  completely 
internal,  which  is  carried  on  between 
man  and  man  in  a  State,  or  between 
dierent  parts  of  the  same  State,  and 
which  does  not  extend  to  or  affect 
other  States.' "  Leovy  v.  United 
States,   177   U.   S.  631  and   632,  per 


Shiras,  J.,  citing  Gibbons  v.  Ogden,  9 
Wheat.  1,  194. 

"  That  a  State  has  power  to 
authorize  the  building  of  bridges 
over  navigable  waters,  although  they 
may  to  a  certain  extent  obstruct 
navigation,  is  a  well  established 
doctrine.  This  power,  however,  is 
held  to  be  subject  to  the  exercise  of 
the  power  of  Congress  to  regulate 
navigation."  2  Amer.  &  Eng.  Ency. 
of  Law  (1st  Ed.  -887)  p.  546,  and 
cases  cited.  Article  "  Bridges"  by 
Joseph  A.  Joyce. 

Diminishing  or  impeding  flour 
of  streams,  by  bridges  or  dams;  the 
right  generally;  detention  for  rea- 
sonable use,  etc.,  see  note  85  Am.  St. 
Rep.   707. 

56.  Montgomery  v.  Portland,  190 
U.  S.  89,  47  L.  Ed.  965,  89  Sup.  Ct. 
107. 

57.  Cummings  v.  City  of  Chicago, 
188  U.  S.  410,  23  Sup.  Ct.  472. 

58.  165  U.  S.  365,  366,  368  (1896), 
41  L.  Ed.  747,  748,  17  Sup.  Ct.  357. 


346 


Waters.  §  274? 

do  not  overlook  the  long-settled  principle  that  the  power  of  Con- 
gress to  regulate  commerce  among  States  *  is  complete  in  itself, 
may  be  exercised  to  its  utmost  extent,  and  acknowledges  no  limi- 
tations other  than  are  prescribed  in  the  constitution.'  "  59    It  is  de- 
clared in  a  early  case  that  a  State  has  power  to  regulate  the  use 
of  public  roads  within  its  jurisdiction,  and  to  authorize  the  con- 
struction of  bridges  and  such  other  improvements  as  are  not  incom- 
patible with  the  use  of  the  stream  as  a  public  highway.     If  a 
bridge  is  built,  and  it  is  necessary  for  the  convenience  of  the  pub- 
lic, and  does  not  prevent  the  free  use  of  the  stream  as  a  public 
highway,  although  it  may  have  occasioned  some  slight  inconven- 
ience to  those  who  had  been  in  the  habit  of  navigating  the  stream 
by  obliging  them  to  take  some  additional  precautions  in  passing 
it,  it  will  not,  therefore,  be  necessarily  considered  a  nuisance.60 
Again,  where  both  the  State  and  the  national  government  author- 
ize the  erection  of  a  bridge  over  navigable  waters,  it  does  not  con- 
stitute a  nuisance  which  can  be  abated  as  such.61     The  Wheeling 
Bridge  case,62  which  has  been  much  discussed,  decides  that  a  Vir- 
ginia statute  authorizing  a  bridge  over  the  Ohio  which  was  an 
obstruction  to  commerce,  constituted  no  protection,  and  a  bridge 
over  the  Ohio  being  a  nuisance,  the  Federal  Supreme  Court  en- 
joined it  as  a  nuisance  at  the  instance  of  the  State  of  Pennsylvania, 
and  that  where  a  structure  constitutes  a  nuisance  there  is  no  room 
to  calculate  between  its  benefits  and  injuries.     But  subsequently63 
it  was  also  decided  that  an  act  of  Congress  declaring  a  bridge  to 
be  a  lawful  structure  at  its  then  height,  was  constitutional  and 
also  that  a  decision  of  the  court  prior  to  such  statute  declaring  the 
bridge  an  obstruction  under  then  existing  regulations  of  commerce, 
was  so  far  modified  by  the  enactment  as  to  be  no  longer  enforce- 
able.    So  where  an  existing  bridgs  over  a  river  dividing  two  States 

59.  Gibbons  v.  Ogden,  9  Wheat.  1,  61-  Miller  v.  Mayor  of  New  York, 
196,  6  L.  Ed.  70;  Brown  v.  Mary-  109  U.  S.  385,  27  L.  Ed.  971,  3  Sup. 
land,    12    Wheat.   419,   446,   6  L.   Ed.       Ct.    228. 

678,  688;   Brown  v.  Houston,   114  U.  62.  Pennsylvania    v.     Wheeling    & 

S.    630,   29   L.    Ed.    260,    5    Sup.    Ct.  Belmont    Bridge    Co.,    13    How.     (U. 

1091.  S.)    518. 

60.  Williams   v.   Beardsley,   2  Car-  63.   18  How.    (U.  S.)    421. 
ter   (Ind.),  591. 

347 


§  274  Waters. 

is  declared  by  statute  to  be  a  lawful  structure  and  a  posit  route, 
such  enactment  is  constitutional  and  abates  a  pending  action  to 
declare  the  bridge  a  nuisance.64     In  a  very  recent  decision,65  the 
case  of  Wheeling  Bridge66  is  briefly  discussed  and  the  court,  per 
Holmes,  J.,  says:  "  It  hardly  was  disputed  that  Congress  could 
deal  with  the  matter  under  its  power  to  regulate  commerce ;"  that 
the  compact  between  Virginia  and  Kentucky  when  the  latter  was 
let  into  the  Union  made  the  use  and  navigation  of  the  Ohio  as  to 
the  territory  of  either  State  lying  thereon  free  and  common  to 
the  citizens  of  the  United  States ;  and  that  that  compact  had,  by 
sanction  of  Congress,  become  a  law  of  the  Union,  and  a  State  law 
which  violated   it  was  unconstitutional  and  in  conflict  with  the 
acts  of  Congress',  which  were  the  paramount  law.    Holmes,  J.,  also 
said:  "  In  the  case  at  bar,  whether  Congress  could  act  or  not,  there 
is  no  suggestion  that  it  has  forbidden  the  action  of  "  the  State.67 
"  There  are  three  cases  on  which  authority  from  the  Legislature 
is  necessary  to  erect  a  bridge  across  a  stream :  First,  where  the 
stream  is  navigable ;  second,  where  the  State  owns  the  bed  of  the 
t-tream ;  and  third,  where  the  right  to  take  toll  is  desired.     Im- 
passible obstructions  may  be  authorized  by  a  State  upon  either 
tidal  or  fresh-water  streams  within  its  limits  and  navigable  to 
coasting  vessels,  while  the  power  conferred  upon  Congress  to  regu- 
late commerce  remains  dormant  and  unexercised  by  legislation 
upon  the  subject;  and  the  mere  grant  of  commercial  power,  an- 
terior to  any  action  of  Congress  under  it,  is  not,  in  this  respect, 
exclusive  of  State  authority.     Even  when  an  impassible  structure 
like  a  dam  might  be  removable  as  obstructing  interstate  commerce, 
a  bridge,  erected  under  authority  from  a   State,   which,  having 
draws  or  openings,  affords  opportunities  for  vessels  to  pass,  but 
which  limits  the  navigation,  at  a  point  below  where  the  coasting 
trade  is  carried  on  by  licensed  vessels,  to  the  space  occupied  by  the 

64.  Clinton   Bridge,   10  Wall.    (U.       Belmont  Bridge  Co.,  13  How.  (U.  S.) 
S.)   454.  518,  14  L.  Ed.  249;   18  How.    (U.  S.) 

65.  Missouri  v.    Illinois     (Chicago      421,  15  L.  Ed.  435. 

Drainage  Case),  200  U.  S.  part  5,  67.  See  §  299  herein  for  full  state- 
National  Corp.  Rep.  (1906)  46,  given  nient  of  facts  and  law  of  the  Mis- 
in  §  299,  herein.  souri  v.  Illinois  case. 

66.  Pennsylvania    v.    Wheeling    & 

348 


Waters.  §  27-4 

draw  or  opening,  would  not  be  condemned,  although  additional 
precautions  in  passing  it  may  be  required  on  the  part  of  vessels,  or 
temporary  delays  may  be  thereby  caused  by  navigators.  A  bridge 
so  authorized,  having  a  sufficient  opening,  or  being  of  sufficient 
height,  at  the  usual  state  of  the  water  or  of  ordinary  freshets,  to 
permit  the  passage  of  any  vessel  capable  of  navigating  the  stream, 
will  not  be  condemned  as  interfering  with  the  powers  of  Con- 
gress, even  in  cases  where  Congress  has  regulated  navigation  upon 
the  river ;  and  the  Legislature  of  a  State  may  empower  pers-ons  or 
corporations  to  erect  and  maintain  bridges  without  draws  over  its 
navigable  waters,  as  well  as  dams,  if  the  statute  giving  such 
power  does  not  interfere  with  the  regulations  of  Congress  on  the 
same  subject.  Such  authority  will  be  a  protection  from  indict- 
ment brought  upon  the  ground  that  the  structure  is  a  public  nuis- 
ance, and  is  valid,  although  no  indemnity  is  provided  for  those 
who  have  been  accustomed  to  navigate  in  the  waters  which  are 
thereby  enclosed."68  A  State  authorization  to  erect  and  maintain 
a  bridge  warrants  its  proper  maintenance  by  reconstructing,  re- 
placing or  renewing  parts  thereof  when  requisite  to  adapt  and 
make  it  fit  for  its  intended  purposes,  its  safety,  and  business 
necessities,  where  its  form  remains  substantially  unchanged,  and 
the  authorization  contains  no  restrictions  to  the  contrary;  and 
this  is  so,  even  though  the  State's  control  over  the  river  at  the 
lime  of  the  grant  is  subsequently  transferred  to  and  assumed  by 
the  United  States,  and  an  enactment  is  passed  regulating  the  con- 
struction and  form  of  bridges  over  said  streams.69  And  where  a 
bridge  is  rebuilt  in  pursuance  of  an  authority  conferred  by  law 
for  the  benefit  of  the  public  and  the  method  employed  does  not  un- 
reasonably or  unnecessarily  obstruct  navigation,  it  cannot  be  held 
that  a  public  nuisance  is  created  such  as  will  warrant  recovery  of 
special  damage  claimed  to  have  been  sustained  by  a  shipper  where 
reasonable  provision  has  also  been  made  calculated  to  obviate  such 
alleged  or  like  claimed  injuries.70    But  it  is  held  that  a  bridge  over 

68.  Gould  on  Waters  (3d  ed.).  §  Vicksburg,  Shreveport  &  Pac.  R.  119 
132.  U.   S.   281. 

69.  United  States  v.  Cincinnati  &  70.  Rhea  v.  Newport  News  &  M. 
M.  V.  R.  Co.,  67  C.  C.  A.  335,  134  V.  R.  Co.,  50  Fed.  16,  23,  12  Ry.  & 
Fed.    353.       See,     also,    Hamilton    v.  Corp.  L.  J.  3. 

349 


§  274  Waters. 

a  navigable  stream  is  not  indictable  as  a  nuisance  where  it  is 
erected  for  a  public  purpose,  leaves  a  reasonable  space  for  the 
passage  of  vessels)  and  produces  a  public  benefit  ;71  although  where  a 
river  is  declared  by  the  Legislature  to  be  navigable  between  certain 
points  it  constituts  a  nuisance  to  build  a  bridge  across  the  same 
between  such  points,  so  as  to  prevent  the  passage  of  boats.72  If 
a  bridge  is  unlawfully  maintained  across  a  navigable  river  and  it 
prevents  the  passage  of  vessels  used  for  the  transportation  of  pro- 
ducts from  a  manufactory  on  the  river  and  so  necessitates  trans- 
shipment, a  special  injury  and  nuisance  exist,  and  the  latter 
should  be  abated  at  the  suit  of  the  owner  of  the  factory  and  ves- 
sels.73 And  a  draw  bridge  company  cannot  obstruct  the  naviga- 
tion of  a  river  where  its  charter  does  not  so  authorize;  and  if 
boats  cannot  avoid  injury  from  the  bridge  by  the  use  of  skill  and 
care  it  is  an  obstruction.74  It  is  held  in  a  Federal  case  that  al- 
though the  secretary  of  war's  approval  may  be  requisite  before  a 
bridge  can  be  erscted  over  navigable  waters  under  act  of  Congress, 
such  enactment  does  not  take  away  from  a  State  its  power  under 
quo  warranto  proceedings  to  interfere  with  a  bridge  as  a  public 
nuisance  which  impedes  navigation  of  waters  entirely  within  its 
borders,   and  so  order  such  bridge  modified  or  removed.75     If  a 

71.  Mississippi  &  Mo.  R.  R.  Co.  v.  tional  remedy  to  prevent  such  struct- 
Ward,  2  Black.    (U.  S.)   485  ures  though  lawfully  authorized  from 

72.  State  v.  Dibble,  49  N.  C.  (4  interfering  with  commerce.  "The 
Jones  L. )    107.  mere   delegation   to   the   secretary   of 

73.  Chatfield  v.  New  Haven,  110  the  right  to  determine  whether  a 
Fed.  788.  structure  authorized  by  law  has  been 

74.  The  Terre  Haute  Drawbridge  so  built  as  to  impede  commerce,  and 
Co.  v.  Halliday,  4  Ind.  (4  Porter)  to  direct,  when  reasonably  neces 
36.  sary,  its  modification  so  as  to  remove 

75.  Lake  Shore  &  M.  S.  R.  Co.  v.  such  impediment,  does  not  confer 
Ohio,  Humphrey,  165  U.  S.  365,  17  upon  that  officer  power  to  give  orig- 
Sup.  Ct.  357,  41  L.  Ed.   747.  inal  authority   to   build   bridges,   nor 

Authority  of  secretary  of   war  does     it     presuppose     that     Congress 

concerning  bridges  over  navigabble  conceived  that  it  was  lodging  in   the 

waterways  conferred  by  Act  Septem-  secretary  power   to  that  end.      When 

ber  19,  1890,  c.  907,  §§  4,  5,  does  not  the  distinction  between  an  authorized 

take   away   from   the   States   the   au-  structure    so    erected    as    to    impede 

thority   to   bridge   such   streams,  but  commerce,  and  an  unauthorized  work 

merely  creates  a  cumulative  and  addi-  of    the   same    character    is    borne    in 

350 


Waters. 


§274, 


town  builds  a  bridge  in  such  a  manner  as  to  set  a  stream  of  water 
back  upon  the  land  of  plaintiff,  causing  damage  to  the  latter,  it  is 


mind,   the    fallacy   of   the   contention 
relied    on     becomes    apparent.       The 
mere  delegation  of  power  to  direct  a 
change  in  lawful   structures  so  as  to 
cause  them  not  to  interfere  with  com- 
merce  cannot   be    construed    as    con- 
ferring on  the  officer  named  the  right 
to    determine     when     and     where     a 
bridge  may  be  built.     If  the  interpre- 
tation claimed  were  to  be  given  to  the 
act,  its  necessary  effect  would  be  that 
Congress,    in    creating   an    additional 
means   to   control  bridges   erected  by 
authority  of  law,  had  by  implication, 
confirmed     and     made     valid     every 
bridge  built  without  sanction  of  law. 
The  language  of  the  seventh   section 
makes  clearer  the  error  of  the  inter- 
pretation  relied   on.      The    provision 
that  it  shall  not  be  lawful  to  there- 
after   erect  any   bridge  on  any  nav- 
igable river  or  navigabble  waters  of 
the  United  States,  under  any  act  of 
the  legislative  assembly  of  any  State, 
until   the  location  and   plan  of   such 
bridge     .     .     .     have  been  submitted 
to  and  approved  by  the  secretary  of 
war,  contemplated  that  the  function 
of  the   secretary   should   extend  only 
to  the  form  of  future  structures,  since 
the  act  would  not  have  provided  for 
the  future  erection  of  bridges   under 
State   authority   if   its    very   purpose 
was  to  deny  for  the  future  all  power 
in    the   States    on   the   subject.      The 
qualifications    affixed    to   the   proviso 
which  accompanies  this  section  throws 
light  on  the  entire  statute  and  points 
obviously  to  the  purpose  intended  to 
be    accomplished    by    its    enactment. 
The  qualifying  language   is  that  the 
action  shall  not  apply  to  any  bridge 


heretofore  duly  authorized  by  law,  or 
be  so  construed   as  to  authorize   the 
construction     of    any    bridge,    draw- 
bridge,  bridge    piers   and   abutments, 
or  other  works   under   an  act  of   the 
legislature  of   any   State,   over   or   in 
any  stream,  port,  roadstead,  haven  or 
harbor,  or  other  navigable  water,  not 
wholly    within    the     limits    of    such 
State.     The  construction  claimed  for 
the  statute  is  that  its  purpose  was  to 
deprive  the  States  of  all  power  as  to 
every     stream,     even     those     wholly 
within  their  borders,  whilst  the  very 
words  of  the  statute,  saying  that  its 
terms    should    not    be    construed    as 
conferring  on  the  States  power  to  give 
authority  to  build  bridges  on  streams 
not  wholly  within   their  limits,  by  a 
negative    pregnant    with    an    affirma- 
tive, demonstrate   that  the   object  of 
the  act  was  not  to  deprive  the  sev- 
eral States  of  the   authority  to   con- 
sent to  the   erection  of  bridges  over 
navigable  waters  wholly  within  their 
territory.     To  hold  that  the  act  man- 
ifested  an  intention   on   the   part  of 
Congress  to  strip   the   several   States 
of  all  authority  over  every  navigable 
stream  wholly  within  the  State  would 
require  the  obliteration  of  these  quali- 
fying words,  and  would   therefore  be 
the  creation  of  a  new  statute  by  judi- 
cial   construction."       Lake     Shore    & 
Michigan  Railway  v.  Ohio,  165  U.  S. 
365,  368,  369. 

See  generally  as  to  approval, 
etc.,  of  official.  Egan  v.  Hart,  165 
U.  S.  188,  41  L.  Ed.  680,  17  Sup.  Ct. 
300;  Miller  v.  Mayor  of  New  York, 
109  U.  S.  385,  27  L.  Ed.  971,  3  Sup. 
Ct.  228. 


351 


§275  Waters. 

liable  therefor,  and  even  though  there  is  no  allegation  in  terms  of 
negligence  or  unskillfulness  in  such  construction,  it  is  a  matter 
of  form  not  subject  to  general  demurrer.76     Again,  the  sufficiency 
of  a  bridge  to  carry  off  the  water  of  a  particular  stream  may  be 
shown  by  the  testimony  of  one  who  has  knowledge  of  the  fact 
from  actual  observation,  though  he  is  not  an  expert.77  And  in  case  an 
overflow  of  land  and  consequent  destruction  of  property  is  caused 
by  a  railroad  pile  bridge  across  a  creek  the  court  will  consider  the 
fact  that  the  damage  was  caused  by  an  extraordinary  flood.     Rail- 
road companies  are  only  bound  to  build  and  maintain  such  bridges 
and  other  structures  as  ordinary  and  reasonable  men  can  foresee 
shall  be  reasonably  necessary  to  meet  the  ordinary  contingencies 
and  demands  of  nature.78   In  an  early  English  case  it  is  held  that 
if  a  bridge  be  built  in  a  slight  or  incommodious  manner,  no  per- 
son can,  at  his  choice,  impose  such  a  burden  on  the  county ;  and 
it  may  be  treated  altogether  as  a  nuisance,  and  indicted  as  such. 
But  if  the  public  lie  by  without  objection,  and  make  use  of  it  for 
some  time,  it  is  evidence  that  they  adopt  the  act.79 

§  275.  Docks,  wharves,  piers  and  like  structures. — It  may  be 
generally  stated  that  even  though  a  person  has  the  title  to  the  soil 
on  the  shore  or  under  the  water,  he  cannot  obstruct  a  navigable 
river  in  such  a  manner  as  to  interfere  with  the  free  use  of  it  by 
the  public  as  a  highway,  and  this  rule  precludes  his  construction 
of  a  wharf  so  obstructing  or  interfering  with  such  use.  A  person 
may,  however,  build  a  wharf  for  the  accommodation  of  the  public 
navigating  the  river  and  for  his  own  private  profit,  not  interfering 
with  navigation.  But  the  right  to  construct  and  use  a  wharf  is 
subject  to  the  paramount  right  of  the  public  to  navigate  and  use 
the  river  as  a  common  highway,  and  it  can  in  no  way  interfere 
with  such  public  use  and  the  right  of  the  public  is  not  confined  to 
any  particular  part  or  portion  of  such  stream,  but  extends  to  the 

76.  Mootry  v.   Town  of   Danbury,  78.  Peoria  &  Pekin  Union  Ry.  Co. 

45  Conn.  550,  29  Am.  Rep.  703.  v.  Barton,  38  111.  App.  469. 

^7.  Willitts    v.    Chicago,    Burling-  79.  King   v.    Inhabitants    of   West 

ton  &  Kansas  City  R.  Co.,  88  Iowa,  Riding,  2  East,  342,  348,  6  R,  R.  439; 
282,  21  L.  R.  A.  608,  55  N.  W.  313.  per  Lord  Ellenborough,  C.  J.  (a  case 

of  repair  of  bridge). 

352 


Waters. 


275 


entire  stream,  just  as  the  right  to  use  a  common  highway  extends 
to  all  parts  thereof.80  It  is  also  decided  that  in  the  exercise  of  his 
property  rights'  the  owner  of  land  abutting  on  navigable  water 
may  lawfully  build  a  wharf  to  the  channel,  unless  restrained  by 
peculiar  conditions  of  navigation  or  by  public  regulations.81   So  the 


80.  Sherlock  v.  Bainbridge,  41 
Ind.  35,  13  Am.  Rep.  302,  case  modi- 
fies 29  Ind.  3G4,  95  Am.  Dec.  614. 
See  §§  65,  212  et  seq.  herein. 

Qualification  of  rights. — The 
right  of  an  individual  to  build  a 
wharf  in  front  of  his  land  in  nav- 
igable waters,  is  subject  to  the  quali- 
fication, that  such  wharf  does  not 
improperly  impede  the  public  naviga- 
tion; the  object  of  the  law  conferring 
this  right  being  to  benefit  commerce. 
In  this  case,  A.  and  B.  were  owners  of 
contiguous  lots  of  land,  bounded  on 
the  easterly  side,  by  a  harbor;  A.'s 
lot  lying  south  of  B.'s.  A.  owned  a 
wharf  extending  from  his  land  into 
the  harbor,  at  the  further  end  of 
which  was  a  short  wharf  at  right 
angles  with  the  principal  one,  the 
whole  being  in  the  form  of  a  — |. 
This  wharf,  on  the  north  side  of  it, 
where  vessels  principally  lay,  was  a 
safe  and  convenient  one,  and  much 
resorted  to.  B.  was  about  driving  a 
connected  row  of  piles  from  the 
south-east  corner  of  his  land  to  the 
north-east  end  of  A.'s  wharf,  in  such 
a  manner  as  to  entirely  obstruct  the 
passage  of  vessels  from  the  waters  of 
the  harbor  to  the  north  side  of  A.'s 
wharf,  which  would  greatly  impair 
the  value  of  A.'s  property.  This  ob- 
struction was  not  contemplated  by 
B.  as  part  of  a  wharf  which  he  in- 
tended to  construct  adjoining  his 
land.  On  a  bill  in  equity,  brought  by 
A.    against    B.   to   restrain   him  from 


making  such  obstruction,  it  was  held 
that  A.  was  entitled  to  the  relief 
sought.  Frink  v.  Lawrence,  20  Conn. 
117,  50  Am.  Dec.  274. 

No  distinction  as  to  tidal  or 
non-tidal  rivers. — In  an  English 
case  it  is  held  that  the  rights  of  a 
riparian  proprietor  against  adjoining 
or  opposite  riparian  proprietors  are 
not  greater  in  respect  of  a  tidal  than 
in  respect  of  a  non-tidal  river.  In 
this  case  plaintiff  and  deferdant  were 
opposite  riparian  proprietors  on  the 
banks  of  a  navigable  tidal  river,  and 
it  was  held  that  the  defendant  could 
not  for  the  protection  of  his  own  soil 
or  otherwise,  construct  a  jetty  pro- 
jecting into  the  bed  of  the  river, 
whereby  the  tidal  water  was  thrown 
with  greater  violence  upon  the  plain- 
tiff's shore,  and  the  public  naviga- 
tion of  the  river  was  or  might  be 
impeded,  and  that  a  suit  by  informa- 
tion and  bill  to  restrain  the  erection 
of  such  a  jetty  was  properly  consti- 
tuted. It  was  also  held  that  the 
fact  of  the  river  traffic  having  been 
almost  entirely  superseded  by  local 
causes  did  not  affect  the  right  of  the 
public  to  have  the  navigation  con- 
served. Atty.-Genl.  v.  Lonsdale,  38 
L.  J.  Ch.  335,  L.  R.  7  Eq.  377,  20 
L.  T.  64,  17  W.  R.  219. 

81.  New  York,  New  Haven  & 
Hartford  Rd.  Co.  v.  Long,  72  Conn. 
11,  43  Atl.  559.  In  this  case  the 
plaintiff  sought  to  restrain  the  de- 
fendants from  extending  their  wharf 


353 


275 


Waters. 


State  may  improve  the  navigation  of  all  navigable  rivers,  and  all 
other  streams  within  her  borders,  and  may  authorize  the  erection 
of  dams,  locks,  bridges,  and  other  works,82  provided  that  they  do  not 
substantially  injure  such  streams  for  purposes  of  navigation.83 
There  is,  however,  an  irreconcilable  conflict  in  the  decisions  as  to 
wharves  and  piers,  and  this  necessarily  follows  from  the  various 
factors  involved  in  determining  whether  or  not  these  and  like 
structures  constitute  obstructions  to  navigation  or  are  nuisances. 
Many  of  these  questions  are  not  within  the  scope  of  this  work, 
and  with   certain  exceptions  have  not   been  considered   herein.84 


parallel  with  and  adjacent  to  its 
pier,  alleging  that  such  extension 
would  obstruct  navigation  and  pre- 
vent vessels  from  reaching  that  side 
or  face  of  the  plaintiff's  wharf,  to  its 
great  loss  and  damage.  The  defend- 
ants denied  these  allegations  and 
averred  in  connection  therewith,  that 
they  were  owners  of  the  upland  and 
of  a  small  wharf  thereon,  and  as  such 
riparian  owners  had  the  right  to 
build  the  extension  complained  of. 
The  plaintiff  denied  this  averment. 
Upon  the  trial  the  court  found  that 
the  existing  wharf  of  the  defendants 
was  at  the  foot  of  a  public  street, 
and  that  such  structure  and  any  ex- 
tension of  it  must  remain  a  public 
wharf  or  landing  place;  and,  inas- 
much as  the  defendants  threatened 
and  intended  to  use  the  extension  for 
their  private  use  exclusively,  granted 
an  injunction  to  prevent  its  erection. 
Held,  that  these  facts  were  outside 
the  issue  and  could  not  justify  the 
judgment  rendered. 

That  riparian  owner  has 
right  to  injunction  to  preserve 
right  to  free  communication  to  river 
channel  and  prevent  maintenance  of 
piers  obstructing  such  access,  see 
Reeves  v.  Backus-Brooks  Co.,  83 
Minn.  339,  86  N.  W.  337.  Compare 
Bond  v.  Wool,   107  N.  C.   139,  12  S. 


E.    281,    and    citations    in    note    84 
under    this   section. 

82.  See  §§  273,  274,  herein,  as  to 
navigable  waters  and  bridges. 

83.  The  Board  of  Commissioners 
of  St.  Joseph  County  v.  Pidge,  5  Ind. 
13. 

Statutory  authorization  or 
grant  to  extend  wharf  into  harbor 
channel  is  subject  to  conditions 
under  which  grant  was  made,  and  in 
absence  of  intent  expressed  to  con- 
trary constitutes  revocable  license. 
Bradford  v.  McQuestion,  1S2  Mass. 
80,  64  N.  E.  688. 

Statutory  right  to  fill  in  lands 
under  water  to  bulkheads  and  pier 
lines  of  navigable  waters  does  not  ex- 
clude a  riparian  owner  from  main- 
taining a  pier  into  such  waters. 
White  v.  Nassau  Trust  Co.,  168  N. 
Y.  149,  61  N.  E.   169. 

City  of  New  York  may  au- 
thorize others  than  owners  of 
wharves  and  bulkheads  to  construct 
piers  in  front  thereof  on  compliance 
with  statutory  conditions.  Bedlow 
v.  New  York  Floating  Dry  Dock  Co., 
112  N.  Y.  263,  2  L.  R.  A.  629,  19  N. 
E.  800,  20  N.  Y.  St.  R.  707,  under 
statute  1806. 

84.  As  to  right  to  build 
wharves,       piers,       etc.,      see      II- 


!54 


Wateks. 


275 


"  The  question  of  the  right  to  project  wharves  or  piers  into  the 
waters  in  front  of  the  riparian  land  is  one  of  local  law  to  be  settled 


linois    C.     R.     Co.     v.     Illinois,     146 
U.     S.     387,     13     Sup.     Ct.     110,     36 
L.    Ed.     1018,    47    Alb.     L.     J.     129 
(may  to  navigable  part  of  water)  ; 
Railroad  Co.  v.  Schurmeier,  7  Wall. 
(U.   S. )    272    (riparian    owners   may- 
construct  wharves  for  convenience  of 
navigation   and  commerce)  ;   Leverich 
v.    City    of    Mobile,     110    Fed.     170 
(wharves  may,  under  policy  of  mod- 
ern times,  be  constructed  by  riparian 
owners    to    navigable    waters    where 
they  do  not  obstruct  navigation  and 
are  for  the  benefit  of  commerce,  es- 
pecially   where    the    right    has    been 
recognized   by    the   State)  ;      Illinois, 
Hunt  v.  Illinois  C.  R.   Co.,  91    Fed. 
955,    34    C.    C.    A.    138    (may    reach 
practical   navigability    from    time   to 
time,  including  waters  navigable  for 
largest  vessels)  ;   Case  v.   Loftus,   39 
Fed.  730,  5  L.  R.  A.  684  (shore  abut- 
ter on  tide  lands  has  subject  to  cer- 
tain   exceptions    access    to    water)  ; 
Turner   v.   City   of  Mobile,    135   Ala. 
73,  33  So.  132   (right  to  wharf  under 
statute  1887,  act  Feb.  28,  and  effect 
thereof)  ;  Webb  v.  City  of  Demopolis, 
95  Ala.  116,  13  So.  289,  21  L.  R.  A.  62 
( city's  right  to  reach  navigable  river 
water   line)  ;   Martin   v.    Heckman,    1 
Alaska,  165    (wharf  may  be  extended 
at   right   angle   to   shore    across    tide 
lands  to  deep  water  but  not  at  line 
and  angle  to  exclude  approach  from 
deep  water  to  another  upland  owner)  ; 
Sherley  v.  Bernicia,  118  Cal.  344,  50 
Pac.    404     (purchasers    from    munici- 
pality  of    land   between    upland    and 
wharf    or    harbor    line    may    reclaim 
same   and   cover   with    wharves,   etc; 
city  may  make  street  a  public  wharf   . 


and    close    purchaser's    access    except 
over   street  to   deep   waters )  ;   Ocker- 
hausen  v.  Tyson,  71  Conn.  31,  40  Atl. 
1041   (shore  owner  on  tide  water  has 
right  to  land  reclaimed  and  to  erect 
wharves,  etc.,  but  others  rights  must 
not    be    infringed)  ;      Lane    v.    New 
Haven    Harbor    Comm'rs,    70    Conn. 
685,   40   Atl.    1068     (right    to   wharf 
subject    to   paramount    right   to    im- 
prove navigation )  ;  Prior  v.   Swartz, 
62  Conn.   132,  25  Atl.  398,  18  L.  R. 
A.    668     (land    owner    on    navigable 
waters    right    to    wharf    below    low 
water  mark  must  so  exercise  as  not 
to   interfere  with   navigation )  ;   Mills 
v.   Evans,   100  Iowa,  712,   69  N.   W. 
1043     (pier    below    high    water    line 
must    not    interfere    with    navigation 
and  State   regulations  must  be  com- 
plied with)  ;  Trustees,  etc.,  of  Brook- 
haven  v.  Smith,  90  N.  Y.  Supp.  646, 
98    App.    Div.    212    (right    to    build 
wharf  below  high  water  mark  did  not 
exist  under  common  law,  as  it  stood 
in  1693;  and   fee  owner  is  not  war- 
ranted in  so  wharfing  because  of  gen- 
eral    public     right     of    navigation)  ; 
People  v.  Mould,  55  N.  Y.  Supp.  453, 
37  App.  Div.  35,  rev'g  52  N.  Y.  Supp. 
1032,    24   Misc.   287    (pier   is   lawful 
when   constructed  to   enable  riparian 
owner  to  reach  navigable  water,  un- 
less public  necessity  or  public  use  of 
the   land   requires    its   removal   or   it 
impedes  navigation,  or  it  is  otherwise 
objectionable  because  of  its  infringe- 
ments of  other  public  rights)  ;    Bond 
v.  Wool,  107  N.  C.  139,  12  S.  E.  281 
(wharves,   piers   and   fishhouses    may 
be   constructed   in  front   of  land   be- 
tween    it    and    navigable    water    o£ 


355 


§275 


Waters. 


by  the  States  in  which  the  waters  are  found.  Therefore,  the  Fed- 
eral courts  have  nothing  to  do  when  cases  involving  the  question 
come  before  them  but  to  follow  the  local  law,  unless  the  question  is 
raised  whether  or  not,  by  an  attempted  change  of  the  local  law, 
either  by  statute  or  by  change  of  decision  by  the  court,  a  vested 
right  has  been  impaired  in  a  manner  which  cannot  be  done  under 
the  Federal  Constitution.  But  the  Supreme  Court  of  the  United 
States  has  been  in  the  habit  of  expressing  its  opinion  upon  the 


sound  even  to  extent  of  precluding 
access  to  wharves  by  adjacent'  pro- 
prietors) ;  Montgomery  v.  Shaver 
(Oreg.)  G6  Pac.  923,  Hill's  Annot. 
Laws,  §§  4227,  4228  (wharf  cannot 
be  extended  in  front  of  lands  of  an- 
other riparian  owner,  although  statu- 
tory authority  from  State  allows 
wharves  to  be  constructed  beyond  low 
water  lines)  ;  Lewis  v.  Portland,  40 
Oreg.  244,  35  Pac.  256,  22  L.  R.  A. 
736  (legislation  on  matter  of 
wharves  on  navigable  but  non-tidal 
waters  and  legislation  as  to  tide- 
lands  allows  construction  of  wharves 
aiding  navigation)  ;  Parker  v.  West 
Coast  Packing  Co.,  17  Oreg.  510,  21 
Pac.  822,  5  L.  R.  A.  61  (may  wharf 
out  to  points  or  depth  which  will  en- 
able ships  to  receive  or  discharge 
cargo )  ;  Reichard  v.  Flinn,  28  Pitts. 
L.  J.  N.  S.  159,  20  Pa.  Co.  Ct.  129 
(may  construct  docks  or  wharves  on 
navigable  streams  when  public  rights 
are  not  invaded)  ;  Murphy  v.  Bul- 
lock, 20  R.  I.  35,  37  Ati.  348  (dis- 
tinction made  as  to  size  of  body  of 
water  and  exception  made  as  to 
power  of  State  and  its  delegated  au- 
thority in  applying  rule  allowing 
construction  of  wharves  in  front  of 
land  owner  on  tidal  waters)  ;  Groner 
v.  Foster,  94  Va.  650,  27  S.  E.  493 
(right  to  wharf,  etc.,  limited  to  State 
statutory,   port  and  warden  line,   de- 


fining line  of  navigation  in  certain 
cities  and  waters)  ;  Eisenbach  v. 
Hatfield,  2  Wash.  236,  12  L.  R.  A. 
632,  26  Pac.  539  (extension  of 
wharves  by  shore  owner  below  high 
water  mark  precluded,  as  against 
State  or  grantee  thereof,  on  shores  of 
sea  or  its  arms.  Wash.  Const.  Art. 
15,  as  to  harbor  lines,  etc.,  con- 
strued ) . 

Wharves;  right  to  erect.  See 
note  40,  L.  R.  A.  635,  under  follow- 
ing headings:  The  rule  in  England; 
the  rule  in  this  country,  cases  recog- 
nizing the  right  of  the  riparian 
owner;  rule  where  title  extends  to 
thread  of  stream;  effect  of  custom; 
statutory  right;  rights  as  against 
individuals;  right  under  grant  or 
license;  to  low-water  mark;  pre- 
scriptive right;  the  Federal  cases; 
cases  denying  the  right;  statutory 
restrictions;  wharves  beneficial;  reg- 
ulation of  right;  harbor  lines;  right 
of  municipal  corporation  to  build; 
right  of  city  to  regulate;  right  of 
New  York  city;  abatement  of  wharf; 
effect  of  street  along  shore;  private 
contracts ;  direction  of  wharf ;  rights 
of  State  and  general  government;  ef- 
fect of  constructing  in  front  of  pri- 
vate property;  right  in  wharf  which 
has  been  erected;  log  pier;  ejectment 
for  pier. 


356 


Wateks.  §  275 

question  as  one  of  Federal  common  law,  and  the  result  is  that, 
not  only  are  its  own  utterances  in  hopeless  conflict,  but  the  attempt 
to  follow  them  has  caused  much  needless  confusion  among  the 
State  decisions."  85  It  is  said  in  a  case  in  the  Supreme  Court  of 
the  United  States  that:  "While  section  12  of  the  Act  of  1890 
forbids  the  construction  or  extension  of  piers,  wharves,  bulkheads, 
or  other  works,  beyond  the  harbor  lines  established  under  the 
direction  of  the  secretary  of  war,  in  navigable  waters  of  the  United 
States,  '  except  under  such  regulations  as  may  be  prescribed  from 
time  to  time  by  him,'  it  does  not  follow  that  Congress  intended  in 
such  matters  to  disregard  altogether  the  wishes  of  the  local  author- 
ities. Its  general  legislation  so  far  means  nothing  more  than  that 
the  regulations  established  by  the  secretary  in  respect  of  waters, 
the  navigation  and  commerce  upon  which  may  be  regulated  by 
Congress,  shall  not  be  disregarded  even  by  the  States.  Congress 
has  not,  however,  indicated  its  purpose  to  wholly  ignore  the  origi- 
nal power  of  the  States  to  regulate  the  use  of  navigable  waters 
entirely  within  their  respective  limits.  Upon  the  authority  then 
of  Cummings  v.  City  of  Chicago,86  and  the  cases  therein  cited,  to 
which  we  may  add  Williamette  Bridge  Co.  v.  Hatch,87  we  hold 
that,  under  existing  enactments,  the  right  of  private  persons  to 
erect  structures  in  a  navigable  water  of  the  United  States  that  is 
entirely  within  the  limits  of  a  State,  cannot  be  said  to  be  com- 
plete and  absolute  without  the  concurrent  or  joint  assent  of  both 
the  general  and  State  governments.  Of  course,  the  right  of  the 
government  to  erect  public  structures  in  a  navigable  water  of  the 
United  States  rests  upon  different  grounds.  But  we  will  not  at 
this  time  make  any  declaration  of  opinion  as  to  the  full  scope  of 
this  power,  or  as  to  the  extent  to  which  Congress  may  go  in  the 
matter  of  the  erection,  or  authorizing  the  erection,  of  docks  and 
like  structures  in  navigable  waters  that  are  entirely  within  the  ter- 
ritorial limits  of  the  several  States.  Whether  Congress  may, 
against  or  without  the  express  will  of  a  State,  give  affirmative 
authority  to  private  parties  to  erect  structures  in  such  waters,  it  is 
not  necessary  in  this  case  to  decide.     It  is  only  necessary  to  say 

85.   1     Farnham    on     Waters     and  86.   188    U.    S.    410,    23    Sup.    Ct. 

Water  Rights,  539.     See,  also,  Gould      472. 
on  Waters   (3rd  ed.),  §§  167-178.  87.  125  U.  S.  1. 

357 


§  275  Wateks. 

that  the  Act  of  1899  does  not  manifest  the  purpose  of  Congress  to 
go  to  that  extent  under  the  power  to  regulate  foreign  and  inter- 
state commerce  and  thereby  to  supersede  the  original  authority 
of  the  States.  The  effect  of  that  act,  reasonably  interpreted,  is  to 
make  the  erection  of  a  structure  in  a  navigable  river,  within  the 
limits  of  a  State,  depend  upon  the  concurrent  or  joint  assent  of 
both  the  national  government  and  the  State  government.  The 
secretary  of  war,  acting  under  the  authority  conferred  by  Con- 
gress, may  assent  to  the  erection  by  private  parties  of  such  a  struc- 
ture. Without  such  assent  the  structure  cannot  be  erected  by 
them.  But  under  existing  legislation  they  must,  before  proceed- 
ing under  such  an  authority,  obtain  also  the  assent  of  the  State, 
acting  by  '  its  constituted  agencies.'  " 88  Wharves'  are  not  nuis- 
ances per  se,  but  they  should  be  properly  regulated  and  restricted 
to  prevent  their  becoming  nuisances.89  So,  a  wharf  extending  be- 
yond the  wharf  line  established  by  statute  is  not  of  itself  such  a 
public  nuisance  as  to  justify  an  injunction  at  the  instance  of  any 
private  citizen.90  And  where  there  is  a  threatened  injury  to  com- 
merce or  navigation  resulting  or  to  result  from  the  erection  of  a 
wharf  in  a  public  harbor,  such  wharf  may  be  an  intrusion  or  en- 
croachment upon  tide  waters,  or  the  soil  thereunder,  belonging  to 
the  State,  but  the  encroachment  would  not  therefore  be  a  public 
nuisance  nor  an  injury  to  the  harbor  by  legal  conclusion.  It  is  not 
every  building  below  the  high  water  mark  that  is  ipso  facto  in 
law  a  nuisance,  and  the  question  is  one  of  fact.91  Again,  if  navi- 
gation is  not  injured  by  the  erection  of  a  wharf  in  tide  waters  it 
is  not  a  nuisance.92  So  where  the  Legislature  has  provided  for  the 
use  of  streams  of  the  State  for  logging  purposes  and  has  thereby 
legalized  the  same  under  certain  safeguards  and  subject  to  certain 
restrictions,  if  a  person,  acting  within  such  legislative  authority, 
constructs  piers  in  a  navigable  stream  in  a  manner  which  per- 
mits others  to  use  the  stream  without  unreasonable  delay  or  hind- 

88.  Montgomery   v.    Portland,    190  91.  People    v.    Davidson,    30    Cal. 
U.    S.   Rep.    89,    105,    10G,   47   L.   Ed.       379,    384. 

965,  89  Sup.  Ct.  107.  92.  Thornton   v.    Grant,    10    R.    I. 

89.  Geiger  v.  Filor,  8  Fla.  325.  477,  14  Am.  Rep.  701. 

90.  Harlan  &  H.  Co.  v.  Paschall, 
5  Del.  Ch.  435. 

358 


Waters.  §  275 

ranee,  such  piers  do  not  constitute  a  nuisance ;  but  if  they  are  not 
constructed  as  contemplated  by  the  statute,  they  are  a  nuisance. 
Bridge  piers  and  landing  places,  as  well  as  wharves  and  permanent 
piers,  are  frequently  constructed  by  the  riparian  proprietor  on  the 
shores  of  navigable  rivers,  bays  and  arms  of  the  sea,  and  when 
they  are  constructed  in  conformity  with  State  regulations  and  do 
not  extend  below  low  water  mark  they  are  not  considered  nuis- 
ances unless  they  are  an  obstruction  to  the  paramount  right  of 
navigation.  The  rule  governing  cases  of  this  character  is  generally 
this,  that  all  parties  interested  in  the  free  use  of  a  navigable 
stream  are  subject  to  conditions  that  may  exist  in  each  particular 
case.  ]STo  one  may  arbitrarily  obstruct  a  stream  to  his  neighbor's 
detriment.  Each  one  is  entitled  to  the  free  and  reasonable  use  of 
navigable  streams  and  may  place  reasonable  obstructions  thereon 
which  serve  a  beneficial,  useful  purpose  and  leave  a  reasonable  use 
to  others  interested.93  But  the  unlawful  erection  or  extension  of  a 
wharf  which  obstructs  navigation  may  be  enjoined  or  abated  as  a 
public  nuisance,  on  the  apj>lication  of  the  State  or  of  an  individual 
who  suffers  a  special  injury  therefrom.  If,  however,  the  structure 
itself  is  lawful  as  a  wharf  and  the  injury  or  nuisance  arises  from 
acts  of  its  owner,  excluding  the  public  from  their  right  to  its  use, 
the  injunction  must  be  sought  upon  that  ground,  and  not  upon  the 
ground  that  the  wharf  is  an  obstruction  to  public  navigation ;  the 
two  causes  of  action  being  distinct  and  even  antagonistic  in  char- 
acter.94 Again,  a  riparian  owner  on  an  inland  navigable  lake  has 
the  exclusive  right  to  build  piers  and  wharves  in  front  of  his  land 
in  aid  of  navigation,  and  may  remove  as  a  private  nuisance  a  pier 
erected  there  by  another  person  without  grant  or  license,  where  the 
proprietor  of  such  riparian  rights  protects  them  in  a  lawful  and 

93.  Small  v.  Harrington  (Idaho,  to  pass  around,  through  or  over  said 
1904),  79  Pae.  461,  469,  per  Stock-  dam  or  boom  without  unreasonable 
slager,  J.  Rev.  Stat.  1887,  §  835,  con-  delay  or  hindrance,"  and  the  claimed 
sidered  in  the  above  case  provides  obstruction  caused  by  said  piers  was 
that:  "No  dam  or  boom  must  be  that  they  impeded  plaintiff's  use  of 
hereafter  constructed  or  permitted  on  the  stream  for  floating  down  logs,  but 
any  creek  or  river  unless  said  dam  or  the  claim  was  held  not  sustained, 
boom  has  connected  therewith  a  94.  New  York,  New  Haven  &  Hart- 
sluiceway,  lock  or  fixture  sufficient  ford  R.  Co.  v.  Long,  72  Conn.  10,  43 
and  so  arranged  as  to  permit  timber  Atl.  559. 

359 


§  276  Waters. 

peaceable  manner.95  And  that  part  of  a  wharf  which  projects, 
without  legal  right,  beyond  the  line  established  by  the  State  into 
navigable  water  in  a  harbor  is  a  public  nuisance  and  obstruction.96 
A  breakwater  also  constitutes  a  nuisance  when  it  is  constructed  at 
such  a  place  in  a  creek  as  to  so  deflect  the  water  in  times  of  flood 
that  it  injures  the  land  of  a  riparian  owner  on  the  opposite  bank.97 
Nor  may  the  proprietor  of  a  dock  on  a  navigable  stream  fasten  a 
boat  or  other  water  craft  to  his  dock  and  suffer  the  same  to  remain 
there  permanently,  if  thereby  an  obstruction  is  created  to  the 
free  and  unimpeded  navigation  of  the  stream.  If,  by  reason  of 
his  ownership  of  the  dock,  he  has  the  right  to  thus 
occupy  a  portion  of  the  stream  during  his  pleasure,  he  would  have 
the  same  right  to  extend  his  dock  into  the  river  the  same  distance, 
or  to  build  any  other  permanent  structure  there,  and  thus  appro- 
priate to  his  own  use,  in  perpetuity,  a  portion  of  a  navigable 


§  276.  Fishing  and  fishing  nets — Pollution  or  obstruction  of 
waters. — If  the  public  has  a  right  of  fishery  in  certain  waters  a 
public  nuisance  may  be  created  by  substances  being  placed  or 
allowed  to  enter  therein  which  poison  and  pollute  the  same  and 
kill  the  fish.99  So,  the  Legislature  has  the  power  to  declare  the  use 
of  nets  for  fishing  in  certain  waters  to  be  a  nuisance  when  the 
public  interests  are  injured  thereby  and  such  use  may  be  abated 
by  the  proper  officers.100  And  if  water  filled  with  sediment  is  dis- 
charged into  a  stream,  polluting  it,  the  person  responsible  therefor 
may  be  enjoined  at  the  instance  of  another  in  whom  the  right  to 
fish  in  a  certain  portion  of  the  stream  is  vested.101    Again,  a  statu- 

95.  McCarthy  v.  Murphy,  119  Wis.  133,  14  Sup.  Ct.  499,  49  Alb.  L.  J. 
159,  96  N.  W.  531.  301,  38  L.  Ed.  385,  id.  119  N.  Y.  246, 

96.  The  Idlewild,  64  Fed.  603,  12  23  N.  E.  878,  29  N.  Y.  St.  R.  581,  7 
C.  C.  A.  328.  L.  R.  A.  134,  41  Alb.  L.  J.  348. 

97.  Nicholson  v.  Getchell,  96  Cal.  As  to  obstruction  by  fish  nets 
394,  31  Pac.  265.  and    injunction.      See    Reyburn   v. 

98.  McLean  v.  Matthews,  7  111.  Sawyer,  135  N.  C.  328,  65  L.  R.  A. 
App.  599,  602.  930,  47  S.  E.  761. 

99.  People  v.  Truckee  Lumber  Co.,  101.  Fitzgerald  v.  Firbank,  C.  A. 
116  Cal.  397,  48  Pac.  37,  39  L.  R.  A.  (1897)  2  Ch.  96,  66  L.  J.  Ch.  N.  S. 
581,  58  Am.  St.  Rep.  183.  529,  76  Law.  T.  Rep.  584. 

100.  Lawton  v.   Steele,   152   U.  S. 


Waters.  §  277 

tory  common  nuisance,  under  a  statute  to  prohibit  obstructions  of 
fish  in  rivers,  is  indictable  even  though  a  special  remedy  exists 
under  the  enactment.102  But  where  no  right  of  fishery  exists  in  the 
public  a  dam  across  a  non-navigable  stream,  erected  by  a  patentee 
of  land  on  both  sides'  thereof,  does  not  constitute  an  indictable 
public  nuisance,  even  though  fish  are  thereby  prevented  from 
passing,  and  the  same  rule  applies  even  under  a  statute  providing 
for  the  preservation  of  fish.103  And  where  a  municipality  deposits 
garbage  in  a  navigable  lake  and  through  force  of  the  wind  and 
waves  such  garbage  causes  injury  to  fishing  nets1  and  kills  the  fish 
therein,  but  only  in  one  instance,  equitable  relief  will  be  refused 
as  for  a  public  nuisance.104  The  right  of  a  riparian  owner  to  enjoy 
the  waters  of  a  stream  for  the  purpose  of  fishing  being  a  substan- 
tial right,  if  the  water  thereof  is  polluted,  it  is  error  to  insitruct  the 
jury  that  if  they  find  a  verdict  they  cannot  include  in  the  assess- 
ment of  damages  any  amount  for  any  fish  which  might  have  been 
in  the  stream.105 

§  277.  Mines — Pollution  of  waters — Mining  debris  and  de- 
posits.— While  an  upper  riparian  owner  may  use  the  waters  of  a 
stream  for  mining  purposes,  and  to  a  certain  extent  impair  its 
purity,  he  may  not  so  pollute  it  as  to  render  it  unfit  for  the  do- 
mestic use  of  a  lower  riparian  owner,  or  so  use  it  as  to  fill  up  the 
channel  and  cause  the  debris  to  be  deposited  upon  the  land.106  So, 
the  owners  of  a  mine  will  not  be  permitted  without  liability  there- 
for to  injure  a  lower  riparian  proprietor  by  draining  into  a  stream 
matter  which  polutes  its  waters,  destroys  its  use  for  domestic  pur- 
poses and  at  times  of  overflow  kills  vegetation.107  And  one  who 
appropriates  water  for  domestic  purposes  may  have  a  prior  appro- 
priator  for  mining  purposes  enjoined  from  rendering  the  water 
unfit  for  use  by  increasing  the  capacity  of  the  stream  from  the 

102.  Commonwealth  v.  Ruggles,  106.  Tennessee  Coal,  Iron  &  Rd. 
10  Mass.  391.  Co.    v.    Hamilton,    100    Ala.    252,    46 

103.  People  v.  Piatt,  17  Johns.  Am.  St.  Rep.  48,  14  So.  167  (action 
(N.  Y. )    195,  8  Am.  Dec.  382.  on  the  case  for  damages). 

104.  Kuehn  v.  Milwaukee,  83  Wis.  107.  Hunter  v.  Taylor  Coal  Co.,  16 
583,  53  N.  W.  912,  18  L.  R.  A.  553.  Ky.  L.  Rep.  190. 

105.  West  Muncie  Strawboard  Co. 

v.  Slack  (Ind.,  1904),  72  N.  E.  879.      , 

361 


§  277  Watees. 

raining  waters.108  So,  a  right  of  action  exists  where  the  waters  of 
a  pure  mountain  stream  of  water  which  constituted  a  special  in- 
ducement to  plaintiff's  purchase  of  his  land  are  so  polluted  by  a 
colliery  above  that  fish  and  shrubbery  of  plaintiff  are  destroyed, 
his  fish  and  ice  pond  spoiled,  and  the  water  rendered  unfit  for  do- 
mestic uses,  so  that  plaintiff  is  compelled  to  cease  using  the 
water.109  Again,  where  one  who  owned  land  on  a  stream,  used  the 
water  to  wash  ore  taken  from  his  land,  and  then  allowed  the 
water  to  return  to  the  stream  so  polluted  as  to  be  unfit  for  watering 
stock  or  for  domestic  uses*,  for  which  it  was  formerly  used,  by  a 
lower  riparian  owner,  and  from  which  there  is  a  deposit  of  mud  and 
refuse  ore  on  the  land  of  the  lower  riparian  owner,  impairing  its 
fertility,  he  was  held  liable  in  an  action  for  damages  by  the  lower 
riparian  owner,  especially  where  the  injury  might  have  been  pre- 
vented by  constructing  proper  basins.110  So,  using  the  banks  of  an 
unnavigable  stream  and  casting  therein  large  quantities  of  mining 
debris,  by  hydraulic  mining,  to  be  carried  by  the  velocity  of  the 
stream  down  its  course  and  into  and  along  a  navigable  river,  ma- 
terially impeding  it's  navigation  and  causing  overflows  and  de- 
posits of  such  debris  upon  adjoining  lands  is  an  encroachment 
upon  the  soil  of  the  river,  and  an  unauthorized  invasion  of  the 
rights  of  the  public  to  its  navigation ;  and  when  such  acts  not  only 
impair  navigation,  but  also  affect  the  rights  of  an  entire  com- 
munity or  neighborhood,  or  any  considerable  number  of  persons  to 
the  free  use  and  enjoyment  of  their  property,  they  constitute, 
however  long  continued,  a  public  nuisance.111  And  where  mining 
debris  is  deposited  in  and  washed  down  the  tributaries  and  creeks 
of  a  river  it  constitutes  a  public  nuisance  and  the  owner  of  prop- 
erty specially  injured  thereby  may  have  an  action  to  enjoin  the 
same ;  and  as  to  a  county  as  a  property  owner,  the  nuisance  is  a 
private  nuisance  where  the  county  is  not  suing  to  protect  the 
rights  of  others,   but  purely  in   its  proprietary   capacity  as  the 

108.  Travis    Placer    Min.    Co.    v.  Iron     &     R.     Co.,     102     Ala.     501. 
Mills,  94  Fed.  909,  33  C.  C.  A.  536.  24  L.  R.  A.  64,   14  So.   749,  48  Am. 

109.  Sanderson     v.     Pennsylvania  St.  Rep.  77,  1  Toledo  Leg.  News,  35. 
Coal  Co.,  86  Pa.  St.  401,  27  Am.  Rep.  111.  People  v.  Gold  Run  Ditch  & 
711.  Mining  Co.,  66  Cal.  138,  56  Am.  Rep. 

110.  Drake  v.   Lady  Ensley  Coal,       80,  4  Pac.  1152. 

362 


Waters.  §  277 

owner  of  certain  real  property.112  So,  the  riparian  proprietors  on 
one  side  of  a  stream,  the  waters  of  which  they  and  their  prede- 
cessors had  used  for  sixty  years  for  the  purpose  of  distillation, 
were  held  entitled  to  have  appellants  interdicted  from  discharging 
mine  water  into  the  stream  where  said  appellants,  without  any 
prescriptive  right  so  to  do,  poured  into  the  stream  a  large  body  of 
water  which  they  pumped  up  from  their  mines,  which  water,  if  it 
had  been  left  to  the  law  of  gravitation,  would  never  have  reached 
the  stream.  The  respondents  did  not  complain  of  the  increased 
volume  of  the  stream,  but  that  the  foreign  water  was  of  a  character 
and  quality  different  from  that  of  the  natural  stream,  and  that 
it  prejudicially  affected  the  water  of  the  stream  for  distilling  pur- 
poses.113 But  the  fact  that  a  ditch  is  out  of  order  and  inadequate 
for  carrying  water,  prevents  a  reservoir,  claimed  to  intercept  the 
waters  of  a  stream  from  constituting  a  present  nuisance.114  And 
where  one  person's  possession  and  ownership  of  a  mining  claim  isr 
prior  in  point  of  time  to  that  of  another  person,  and  no  right 
exists  in  favor  of  the  latter,  by  agreement,  regulation  or  custom,  to 
dump  tailings  on  the  former's  ground,  no  damage  can  be  claimed 
of  such  prior  owner  and  possessor  for  obstructing  and  filling  up 
the  flume  of  the  person  so  dumping  on  his  land  if  the  latter  is 
not  prevented  from  dumping  on  his  own  ground.115  If  a  stream 
used  for  placer  mining  is  diverted  by  a  ditch  constructed  by  the 
grantors  of  plaintiff,  said  grantors  being  mere  licensees,  equity 
will  not  restrain  pollution  of  the  stream.116  Again,  the  fact  that  a 
town  grants  leave  to  a  mining  company  to  build  a  flume  in  a  street 
does  not  render  it  liable  for  damages  to  real  estate  of  an  indi- 
vidual occasioned  by  water  leaking  through  the  flume.117 

1,12.  County  of  Yuba  v.  Kate  Hayes  115.  Ralston  v.  Plowman,  1  Idaho, 

Min.  Co.,  141  Cal.  360,  74  Pac.  1049.  595. 

Deposit   of  debris.     See  note   30  116.  Fairplay  Hydraulic  Min.  Co. 

Am.  St.  Rep.  551-557.  v.  Weston,  29  Colo.  125,  67  Pac.  160. 

113.  Young  v.  Bankier  Distillery  117.  Town  of  Idaho  Springs  v. 
Co.  (1893),  A.  C.  691,  69  L.  T.  838,  Woodward,  10  Colo.  104,  14  Pac.  49; 
58  J.  P.  100— (H.  L.  So.).  Town  of  Idaho  Springs  v.  Filteau,  10 

114.  Bear    River    &    A.    Water    &  Colo.  105,  14  Pac.  48. 
Mining  Co.  v.  Boles,  24  Cal.  359. 


363 


§  278  Watees. 

§  278.  Taking  private  property  by  polluting  water  or  over- 
flowing land — Condemnation. — If  there  is  a  taking  of  private 
property  by  polluting  water  in  which  an  individual  has  riparian 
rights,  or  by  overflowing  his  land,  compensation  must  be  made  for 
such  taking.118  And  where  no  power  or  authority  is  vested  in  a  city 
authorizing  it  to  enter  upon  or  take  the  land  of  a  citizen  for  the 
purpose  of  digging  or  laying  a  sewer  thereon,  by  its  charter  or 
other  act  of  the  Legislature;  nor  any  mode  prescribed  for  the  con- 
demnation of  such  property  for  public  use;  then  without  an  ex- 
press grant  of  such  power,  a  municipal  corporation  cannot  exer- 
cise it.  To  justify  the  authority  claimed  by  the  city  in  such  case, 
there  would  have  to  be  a  necessity  for  the  taking  and  the  payment 
of  just  and  adequate  compensation  before  taking;  and  the  court 
will  interfere  to  prevent  the  laying  of  pipes  and  the  discharge  of 
filthy  water  upon  land  where  the  nuisance  is  continuing,  likely 
to  be  permanent,  and  is  reasonably  certain.119  Acts  of  boards  of 
water  commissioners  also  amount  to  a  nuisance  where  the  complaint 
alleges*  as  a  cause  of  action  that  the  defendant  has  wrongfully  dug 
a  ditch  connecting  with  a  wier,  a  part  of  defendant's  system  of 
waterworks,  over  plaintiff's  real  estate,  and  that  during  the  pa-; 
three  years,  as  often  as  three  or  four  times  a  year,  it  caused  plain- 
tiff's real  estate  to  be  overflowed  with  water  by  opening  the  gate  of 
the  wier,  and  allowing  large  quantities  of  water  to  flow  into  the 
ditch,  causing  it  to  overflow,  doing  damage  to  plaintiff's  real  es- 
tate, rendering  it  marshy  and  unfit  for  use,  and  that  defendant 
now  threatened  to  continue  such  acts.  And  although  a  statute  pro- 
vides that  no  injunction  shall  be  maintained  against  the  board  of 
water  commissioners  restraining  them  from  the  use  of  lands,  nor 
any  action  for  damage  to  s<aid  lands,  etc.,  such  statute  does  not 
apply  to  a  case  where  the  board  has  caused  a  nuisance  upon  land 
not  taken  by  it,  but  only  to  cases  where  it  has  taken  land  as  part 
of  its  system  of  works,  so  that  until  it  does  appear  that  it  has  been 
so  taken,  or  is  proposed  to  be  so  taken  and  the  suit  is  turned  into  a 

118.  City  of  Mansfield  v.  Balliett,  Right  to  use  of  water  as  prop- 

65  Ohio  St.  451,  58  L.  R.  A.  626.  63  erty.     See  note  7  Am.  Dec.   531-534. 

X.    E.    86,   given   in   full   "Appendix  119.  Butler  v.   Mayor  of  Thomas- 

A,"   at  end   of   chapter   14.     See  No-  ville,  74  Ga.  570. 
Ian  v.  New  Britain,  69  Conn.  668,  38 
Atl.   703. 

364 


Waters.  §  278 

proceeding  for  condemnation,  the  plaintiff  is  entitled  to  the  ordi- 
nary remedies  against  nuisances.120  An  act  passed  in  1872, 
amending  the  charter  of  the  city  of  New  Britain,  provided  that  its 
common  council,  whenever  the  sewage  of  the  city  should  in  their 
opinion  require  it,  might  take  and  appropriate  in  such  manner  as 
they  should  deem  expedient,  any  stream  running  in  or  through 
the  city,  the  act  providing  for  an  assessment,  of  damages  to  owners 
upon  the  stream,  and  concluding  as  follows :  uAnd  said  damages 
being  paid  or  deposited  as  before  provided,  said  city  may  go  on 
and  complete  said  public  improvement,  and  to  do  all  acts  necessary 
or  convenient  for  that  purpose  without  further  liability  in  the 
premises."  The  common  council  took  and  converted  into  a  sewer 
a  stream  running  through  the  city,  but  did  not  have  assessed,  and 
did  not  pay,  any  damages  to  the  plaintiff,  through  whose  land,  at 
some  distance  below  the  city,  the  stream  ran,  and  was  rendered 
noxious  and  offensive  by  its  polution.  It  was  held  in  a  suit  for 
damages  against  the  city:  1.  That  the  Legislature  did  not  intend 
by  the  act,  even  if  it  had  the  power,  to  authorize  the  city  to  take 
the  stream  until  it  had  paid  all  the  damages  it  might  thereby  do 
to  any  individual.  2.  That  the  city,  not  having  made  such  pay- 
ment, was  liable  for  all  damages  it  might  have  caused,  as  much 
as  if  the  act  had  not  been  passed.121  Again,  it  is  held  that  con- 
demnation of  the  right  to  flow  sewage  through  a  river  must  be 
made  in  the  same  manner  as  that  of  a  right  to  lay  pipes  or  make 
drains  through  the  intermediate  land  lying  between  the  city  and 
the  river;  and  a  known  resident  owner  of  land  bordering  on  a 
non-navigable  river,  who  has  not  been  notified  of  the  condemna- 
tion proceedings  is  not  bound  by  the  award  of  the  appraisers,  but 
may  maintain  an  action  for  damages  resulting  to  him  from  the 
pollution  of  the  water  caused  by  the  sewage  discharged  into  the 
river  and  carried  on  and  along  his  land.122  An  where  a  city  can 
by  condemnation  proceedings  acquire  a  title  to  use  as  it  pleases  a 
river  which  it  is  polluting  with  sewage  this  constitutes  an  import- 
ant factor  in  granting  an  injunction  where  the  injuries  cannot  be 

120.  Eisenmenger     v.     St.      Paul  121.  Kellogg     v.     City     of     New 

Water  Board,  44  Minn.  457,  47  N.  W.       Brittain,  62  Conn.  232,  24  Atl.  996. 
156.  122.  Long  v.  City  of  Emporia,  59 

Kan.  46,  51  Pac.  897 

365 


§279 


Waters. 


redressed  in  a  suit  for  damages.123  Even  a  statutory  power  to  con- 
struct sewers  on  condemnation  of  land  does  not  justify  pollution 
of  a  stream  where  the  land  is  not  condemned.124 

§  279.  Liability  of  municipal  and  quasi  municipal  or  public 
bodies  generally — Negligence — Officers  and  agents. — While  mu- 
nicipal corporations  are  not  liable  for  the  manner-  in  which  they 
exercise  their  discretionary  powers  of  a  public,  legislative  or 
quasi  judicial  nature,  nevertheless  where  their  powers  become 
ministerial  duties  and  there  is  a  negligent  performance  thereof, 
there  is  a  remedy.125  And  when  a  city  acts'  in  its  corporate  and  not 
in  its  governmental  capacity  it  is  liable  for  negligence.126  If  a  city 


123.  Morgan  v.  Danbury,  67  Conn. 
484,  35  Atl.  499. 

124.  City  of  Birmingham  v.  Land, 
137  Ala.  538,  34  S.  613. 

125.  Joyce  on  Damages  (Ed. 
1903),  §  65,  p.  35.  See,  also  2  Dillon 
on  Munic.  Corp.  (4th  ed.),  §  949; 
Tiedeman  on  Munic.  Corp.  (Ed. 
1900),  §  327  et  seq.;  Parker  &  Wor- 
thington  on  Pub.  Health  &  Safety 
(Ed.  1892),  §  40. 

126.  Aschoff  v.  Evansville,  34 
Ind.  App.  25,  72  N.  E.  279;  Wagner 
v.  Portland,  40  Oreg.  389,  67  Pac. 
300. 

Not  liable  when  acting  judi- 
cially in  good  faith  for  errors  of 
judgment.  Chicago  v.  Norton  Mill- 
ing Co.,  97  111.  App.  651,  aff'd  63  N. 
E.  1043. 

When  municipality  liable  in 
general.  See  Piatt  v.  Waterbury,  72 
Conn.  531,  45  Atl.  154;  Lynch  v. 
Springfield,  174  Mass.  430,  54  N.  E. 
871;  McDonald  v.  Duluth,  93  Minn. 
206,  100  N.  W.  1102;  Kleopfert  v. 
Minneapolis  (  Minn.  ) ,  100  N.  VV. 
669,  90  Minn.  158,  95  N.  W. 
908;  Gerst  v.  St.  Louis,  185  Mo.  191, 
84  S.   W.  34;      Wagner   v.   Portland, 


40  Oreg.  389,  67  Pac.  300;  Fox  v. 
Philadelphia,  208  Pa.  127,  65  L.  R. 
A.  214,  57  Atl.  356;  Willoughby  v. 
Allen,  25  R.  I.  531,  56  Atl.  1109; 
Hathaway  v.  Osborne,  25  R.  I.  249, 
55  Atl.  700;  Ostrom  v.  San  Antonio, 
94  Tex.  523,  62  S.  W.  909;  City  of 
Winchester  v.  Carroll,  99  Va.  727,  3 
Va.  Sup.  Ct.  Rep.  555,  40  S.  E.  37; 
Normille  v.  City  of  Ballard,  33  Wash. 
369,  74  Pac.  566;  Bunker  v.  City  of 
Hudson  (  Wis.  ) ,  99  N.  W.  44S. 
Examine  Chicago  v.  Selz,  Schwab  & 
Co.,  202  111.  545,  67  N.  E.  386,  affg. 
104  111.  App.  376;  Norton  v.  New 
Bedford,  166  Mass,  48,  43  N.  E.  1034; 
Boye  v.  Albert  Lea,  74  Minn.  230,  76 
N.  W.  1131;  Twist  v.  Rochester,  165 
N.  Y.  619,  59  N.  E.  1131,  affg.  37 
App.  Div.  307,  55  N.  Y  Supp  850; 
Missano  v.  New  York,  160  N.  Y.  123, 
54  N.  E.  744,  rev'g.  17  App.  Div.  536, 
45  N.  Y.  Supp.  592;  Town  of  South- 
east v.  New  York,  96  App.  Div.  598, 
89  N.  Y.  Supp.  630. 

When  municipality  not  liable 
in  general,  see  Lampe  v.  San  Fran- 
cisco, 124  Cal.  546,  57  Pac.  461 ;  Ver- 
aguth  v.  Denver,  19  Colo.  App.  473, 
76  Pac.  539;  City  of  Dalton  v.  Wil- 


366 


Waters. 


279 


acts  in  its  governmental  capacity  or  in  the  exercise  of  a  govern- 
mental functions  instead  of  in  its  private  corporate  capacity  it  is 
not  liable  for  the  negligent  acts  of  it's  officers  and  agents.127  But 
where  the  acts!  of  such  officers  or  agents  are  not  performed  in  the 
exercise  of  any  governmental  function  the  city  may  be  held  liable 
for  the  negligent  acts  of  such  officers.128     So,  where,  in  the  con- 


son,  118  Ga.  100,  44  S.  E.  830;  Gray 
v.  City  of  Griffin,  111  Ga.  361,  36  S. 
E.  792;  Robertson  v.  City  of  Marion, 
97  111.  App.  332 ;  Williams  v.  Indian- 
apolis, 26  Ind.  App.  628,  60  N.  E. 
367;  Frankfort  v.  Commonwealth,  25 
Ky.  L.  Rep.  311,  75  S.  VV.  217; 
Bowden  v.  Rockland,  96  Me.  129,  51 
Atl.  815;  Stowell  v.  Ashley,  184  Mass. 
416,  68  N.  E.  675;  Tyler  v.  Revere, 
183  Mass.  98,  66  N.  E.  5S7 ;  Butman 
v.  Newton,  179  Mass.  1,  60  N.  E. 
401;  Nicholson  v.  Detroit,  129  Mich. 
246,  8  Det.  Leg.  N.  937,  88  N.  W. 
695;  Dudley  v.  Buffalo,  73  Minn. 
347,  76  N.  W.  44;  Thompson  v.  City 
of  Macon,  106  Mo.  App.  84,  80  S.  W. 
1;  Murray  v.  City  of  Omaha, 
(  Neb.  ) ,  92  N.  W.  299 ;  Stockwell  v. 
Town  of  Rutland,  75  Vt.  76,  53  Atl. 
132;  McCray  v.  Fairmont,  46  W.  Va. 
442,  33  S.  E.  245;  Mauske  v.  Mil- 
waukee  (Wis.),  101  N.  W.  377. 

127.  Colwell  v.  Waterbury.  74 
Conn.  568,  51  Atl.  530,  57  L.  R.  A. 
218;  Chicago  v.  Norton  Milling  Co., 
97  111.  App.  651,  affd.  63  N.  E.  1043; 
Aschoff  v.  Evansville,  34  Ind  App. 
25,  72  N.  E.  279;  Bowden  v.  Kan- 
sas City,  69  Kan.  587,  66  L.  R.  A. 
18,  77  Pac.  573;  City  of  Lexington  v. 
Batson,  26  Ky.  L.  Rep.  363,  81  S. 
W.  264;  Twyman  v.  Board  of  Coun- 
cilmen  of  Frankfort,  25  Ky.  L.  Rep. 
1620,  78  S.  W.  446;  Planters  Oil  Mill 
v.  Monroe  Waterworks  &  L.  Co.,  52 
La.  Ann.  1243,  27  So.  684;  Miller  v. 


Minneapolis,  75  Minn.  131,  5  Am. 
Neg.  Rep.  183,  77  N.  W.  788;  Ely  v. 
St.  Louis,  181  Mo.  724,  81  S.  W. 
168;  Peterson  v.  Wilmington,  130  N. 
C.  76,  56  L.  R.  A.  959,  40  S.  E.  853 ; 
Rose  v.  Toledo,  24  Ohio  Civ.  Ct.  R. 
540;  Green  v.  Muskingum  County 
Comm'rs,  23  Ohio  Civ.  Ct.  R.  43 ;  Neil 
v.  Barron,  8  Ohio  S.  &  C.  P.  Dec. 
424,  7  Ohio  N.  P.  84;  Wagner  v. 
Portland,  40  Oreg.  389,  67  Pac.  300; 
Simpson  v.  City  of  Whatcom,  33 
Wash.  392,  63  L.  R.  A.  815,  74  Pac. 
577;  Wood  v.  City  of  Hinton,  47  W. 
Va.  645,  35  S.  E.  824;  Bartlett  v. 
Clarksburg,  45  W.  Va.  393,  31  S.  E. 
918,  5  Am.  Neg.  Rep.  492,  43  L.  R. 
A.  295 ;  Parker  &  Worthington  on 
Pub.  Health  &  Safety  (Ed.  1892),  § 
160  et  seq.  Examine  Gordon  v.  City 
of  Omaha  (  Neb.  ) ,  99  N.  W. 
242.  Lefrois  v.  Monroe  County,  162 
N.  Y.  563,  50  L.  R.  A.  206,  rev'g  48 
N.  Y.  Supp.  519,  24  App.  Div.  426. 

'When  municipal  officers  act 
judicially  and  not  as  agents  of  city 
see  Kidson  v.  Bangor,  99  Me.  139,  58 
Atl.  900. 

128.  City  of  Denver  v.  Porter,  126 
Fed.  288.  See  Esburg-Gunst  Cigar 
Co.  v.  Portland,  34  Oreg.  282,  55  Pac. 
961,  43  L.  R.  A.  435. 

When  not  performing  public 
governmental  duty  city  liable  for 
agents'  negligence.  Howrigan  v. 
Norwich,  77  Conn.   358,  59  Atl.  487. 


367 


I  279  Waters. 

st'ruction  of  sewers,  a  distinction  exists  between  acts  performed 
wholly  outside  the  corporate  powers  and  acts  performed  within 
the  corporate  powers,  and  which  might  lawfully  have  been  per- 
formed, the  city  will  not  be  liable  in  the  former  case  but  will  be 
liable  in  the  latter  case  for  injuries  caused  by  proceeding  in  an  ir- 
regular manner.129     But  a  suit  lies  to  enjoin  a  village  from  main- 
taining  a   sewer   as   a   nuisance  even  though  commissioners   are 
vested  with  the  entire  charge  and  control  of  sewers  and  they  can 
sue  and  be  sued.130     And  if  sewers  are  so  negligently  constructed 
as  to  injure  private  property  the  municipality  is  liable.131     Where 
the  acts  of  a  town  involved  in  the  necessary  performance  of  a 
duty  prescribed  by  a  municipal  ordinance  are  strictly  ministerial, 
and  when  performed  by  an  officer  or  agent,  by  direction  and  for 
the  benefit  of  the  corporation,  no  exception  from  liability  by  the 
principal  can  be  interposed  when  from  negligence  or  unskillful- 
ness  they  are  so  performed  as  to  produce  unnecessary  damage  to 
other  parties.132    "  The  authority  and  liability  of  our  quasi-public 
corporations  known   as  towns,   as   distinguished   from  municipal 
corporations   incorporated   under   special  charters,   are   generally 
only  such  as  are  defined  and  prescribed  by  general  statutory  pro- 
visions.    Some  things  they  may  lawfully  do  and  others  they  have 
no  authority  for  doing.     To  create  a  liability  on  the  part  of  a  town 
not  connected  with  its  private  advantage  the  act  complained  of 
must  be  within  the  scope  of  its  corporate  powers  as  defined  by  the 
statute.     If  the  particular  act  relied  on  as  the  cause  of  action  be 
wholly  outside  of  the  general  powers  conferred  on  towns,  they  can 
in  no  event  be  liable  therefor,  whether  the  performance  of  the 
act  was  expressly  directed  by  a  majority  vote  or  was  subsequently 
ratified.     So  a  town  is  not  liable  for  the  unauthorized  and  illegal 
acts  of  it's  officers,  even  when  acting  within  the  scope"  of  their 
duties ;  but  it  may  become  so  when  the  acts  complained  of  were 
illegal  but  done  under  its  direct  authority,  previously  conferred  or 

129.  Langley  v.  Augusta,  118  Ga.  131..  Cummings  v.  Toledo,  12  Ohio 

590,  45  S.  E.  486.  C.  C.  650,  1  Ohio  C.  D.  495. 

1,30.  Bolton   v.   New  Rochelle,    84  1,32.  Danbury  &  Norwalk  Rd.  Co. 

Hun    (N.   Y.),  281,   32  N.  Y.   Supp.  v.   Town  of  Norwalk.   37   Conn.    109, 

442.  119. 


368 


Wateks.  §  280 

subsequently  ratified."  133   Again,  a  county  is  not  liable  for  negli- 
gence in  constructing  a  drain  across  a  highway  where  the  work  is 
done  in  pursuance  of  a  legislative  enactment,  such  county  bsing 
an  involuntary  corporation,  that  is,  such  a  corporation  as  is  forced 
into  existence  for  the  discharge  of  such  governmental  duties  as  are 
imposed  by  law ;  and  as  all  such  duties  must  be  discharged  through 
agents  or  employees,  it  follows  that  the  corporation  being  exempt 
from  liability  for  doing  a  lawful  act  in  a  negligent  manner,  upon 
the  ground  of  compulsory  agency  in  behalf  of  the  public  welfare, 
such  agents  cannot  be  held  liable  where  the  principal  is  not.     The 
rule  applies  even  though  doing  said  work  has  created  a  nuisance, 
and  so  long  as  it  stands  the  lands  of  plaintiff  will  be  subject  to 
overflow  and  damage.133a     Nor  is  a  town  liable  for  acts  which  re- 
sult in  creating  a  nuisance  to  the  property  of  one  of  its  citizens, 
when  the  acts  complained  of  are  not  within  the  scope  of  its  cor- 
porate powers.134    And  even  though  a  drainage  district  negligently 
performs  its  duties  and  maintains  a  nuisance,  it  is  a  quasi-public 
corporation  or  agency,  and  not  liable  therefor  in  a  private  suit.130 
So,  a  demurrer  was  held  to  nave  been  properly  sustained  where 
the  plaintiff  averred  that  the  defendant,  which  was  a  quasi-cor- 
poration, constructed  a  ditch  and  embankment  along  his  land ;  that 
-defendant  was  guilty  of  negligence  in  its  construction;   and  by 
reason  thereof  the  plaintiff's  land  had  bean  overflowed,  and  that 
he  had   sustained  injury,   the  court   holding  that  such   corpora- 
tions were  not  ordinarily  liable  for  negligence  and  that  cases  re- 
specting county  bridges  did  not  apply.136 

§  280.   Sewers — Generally. — If  a  city  injures  another  by  run- 
ning  a   sewer  from   a   workhouse   under   its   control   into  a   run 

133.  Seele  v.  Deering,  79  Me.  340,  134.  Seele  v.  Deering,  79  Me.  343, 

347,  10  Atl.  45,  1  Am.  St.  Rep.  314,  10  Atl.  45,  1  Am.  St.  Rep.  314. 

citing     Morrison     v.     Lawrence,     98  135.  Sels  v.  Greene,   81   Fed.   555, 

Mass.  219;   Brown  v.  Vinalhaven,  65  88  Fed.  129. 

Me.   402;   Small  v.  Danville,   51  Me'  136.  Nutt    v.    Miles    County,     61 

359;  Woodcock  v.  Calais,  66  Me.  234.  Iowa,  754,   16  N.  W.   536;    Green  v. 

133a.  Packard  v.  Voltz,  94  Iowa,  Harrison  County,  61  Iowa,  311,  16  N. 

277,  58  Am.  St.  Rep.  396,  62  N.  W.  W.  136.    In  both  these  cases  the  ques- 

757.  tion  was  one  only  of  negligence. 

369 


8  280  Waters. 

it  is  liable.137  So,  the  discharge  of  sewage  through  an  open  wooden 
trough  in  close  proximity  to  plaintiff's  house  constitutes  a  nuis- 
ance.1 "  But  if  an  open  sewer  constitutes  a  nuisance  it  is  no  excuse, 
where  an  injunction  is  sought,  that  private  premises  cannot  law- 
fully be  entered  upon  to  abate  it.139  And  where  a  private  indi- 
vidual constructs  a  sewer,  but  the  street  in  which  it  is  constructed 
is  conveyed  to  and  accepted  by  the  village  trustees,  and  such  sewer 
is  a  nuisance,  it  may  be  enjoined  in  a  suit  against  the  village.140 
Where,  however,  streets  in  which  an  open  temporary  sewer  has  been 
built  by  a  city  have  never  been  accepted  the  court  will  not  enjoin 
the  maintenance  of  the  sewer,  although  an  action  lies  at  law  by  an 
abutting  owner  of  land  for  damages  for  the  trespass.141  If  practical 
public  use  is  made  of  a  sewer  by  a  city  and  it  has  assumed  control 
thereof  and  it  creates  a  nuisance  by  flooding  a  store  cellar,  the  city 
is  liable,  irrespective  of  who  originally  constructed  the  sewer.142 
But  where  grantees  of  lots  with  an  easement  in  sewers  laid  by  the 
grantor,  but  over  which  he  had  no  control,  connected  their  prem- 
ises with  the  sewers,  the  grantor  cannot  be  held  liable  for  the 
nuisance.143  And  a  suit  against  a  city  for  a  sewer  nuisance  will 
not  be  sustained  where  the  injury  arises  from  its  present  use  by 
private  person  and  it  only  appears  that  the  sewer  was  constructed 
years  before  by  direction  of  the  board  of  aldermen.144  Again, 
where  quantities  of  poisonous  gases  are  emitted  from  perforated 
manholes  in  a  sewerage  system,  consequent  upon  defective  con- 
struction rather  than  from  inherent  defects  in  the  system,  and 
such  gases  constitute  a  nuisance  in  a  public  street  contiguous  to  a 
private  house,  an  injunction  will  issue.140   And  if  a  sewer  has  been 

137.  City    of    Cleveland   v.    Beau-       Rapids,    112    Iowa,    367,    83    N.    YV. 
mont,  2  Ohio  Dec.   172,  4  Ohio  Dec.        1050. 

Reprint,  444.  142.  Chalkley     v.     Richmond,     88 

138.  Adams   v.    City    of   Modesto,       Va.    402,    14    S.    E.    339,    15    Va.    L. 
131  Cal.  501,  63  Pac.  1083,  modifying       J.  66. 

61  Pac.  959.  143.  Moore  v.  Langdon,  2   Macky 

139.  Densby    v.    Kingston,    14    N.        (D.  C),  127,  47  Am.  Rep.  262. 

Y.  Supp.  601,  38  N.  Y.  St.  R.  42.  144.  Barge    v.    City    of    Hickory, 

140.  Bolton   v.    New    Rochelle,    84       130  N.  C.  550,  41  S.  E.  708. 

Hun    (N.   Y.)    281,   32   N.    Y.   Supp.  145.  Atlanta  v.  Warnock,  91   Ga. 

442.  210,  18  S.  E.  135,  23  L.  R.  A.  301. 

141.  Cooper     v.     City     of     Cedar 

370 


Waters.  §§  281,  282 

adjudged  a  nuisance  it's  further  continuance  will  be  enjoined.14" 
Stench  from  a  sewer  may  also  constitute  a  ground  of  liability 
against  a  municipality  where  the  ditch  into  which  it  empties  is 
higher  than  the  sewer  outlet.147  But  a  private  person  is  not  liable 
for  a  nuisance  existing  at  the  outlet  of  a  city  sewer  or  drain  with 
which  he  has,  with  the  city's  pel-mission  connected  the  sewage 
from  his4  house.148  A  city  has  power  to  assess  for  a  new  sewer 
where  the  old  one  causes  a  nuisance  because  through  sinking  of 
land  it  fails  to  conduct  sewage  to  the  outlet.149 

§  281.   Sewers  left  in  unfinished  state Successive  actions  may 

be  brought  for  the  recurring  injury  causing  a  nuisance  in  dis- 
charging sewage  upon  private  property  where  the  sewer  is  left  in 
an  unfinished  state  at  the  point  where  the  injury  arises,  but  it  also 
appears  that  such  sewer  is  part  of  a  plan  or  system  which  the  city 
intended  to  extend  beyond  such  point  where  its  sewerage  would 
be  elsewhere  discharged.100  And  a  city  cannot,  without  liability 
for  so  doing,  abandon  a  sewer  after  it  has  constructed  it  partly  over 
plaintiff's  premises,  so  that  it  discharges  sewage  over  and  upon 
them,  where  such  city  has  for  a  consideration  agreed  to  construct 
the  same  across  the  premises.101 

§  282.  Sewers  negligently  constructed  and  operated. — A  city 
must  not  only  properly  construct  its  sewers,  but  must  also  keep 
them  in  repair  and,  and  if  they  are  negligent  in  doing  either  they 
will  be  liable  to  the  party  sustaining  injury  therefrom.102  Even 
though  no  obligation  rests  upon  a  city  to  construct  sewers  and  it  is 
not  responsible  to  a  citizen  for  failure  to  exercise  its  discretion  in 
such  matter,  the  determination  of  the  necessity  for  a  sewer  and  its 
location  and  general  plan  being  an  exercise  of  a  legislative  func- 

146.  Jackson  v.  Rochester,  7  N.  150.  Chattanooga  v.  Dowling,  101 
Y.  St.  R.  853.  Tenn.  344,  47  S.  W.  700. 

147.  Bloomington  v.  Murnin,  36  151.  MeBride  v.  Akron,  12  Ohio 
111.  App.  647.  C.  C.  610,  3  Ohio  Dec.  607. 

148.  Lewis  v.  Alexander,  24  Can.  152.  Mayor  &  Councilmen  of 
S.  C.  551.  Frostburg   v.    Duffy,    70   Md.   47,    16 

149.  McKevitt  v.  Hoboken,  45  N.       Atl.  642. 
J.  L.   482. 

371 


;;  283  Watees. 

tion,  yet,  if  they  are  established  and  so  negligently  constructed 
and  operated  as  to  constitute  a  nuisance  the  city  is  liable  for  in- 
jury sustained  in  health  and  property.  A  municipality  in  pur- 
suing- a  public  work  is  not  privileged  to  commit  a  nuisance  and  if 
it  docs  it  is  liable  to  a  private  individual  in  damages  or  may  be  re- 
strained by  injunction.153 

§  283.  Disposal  of  sewage. — A  corporation  may  be  liable  in 
part  for  a  nuisance  where  it  fills  up  a  creek  used  for  the  discharge 
of  sewage,  thereby  stopping  its  flow  and  causing  an  overflow  of 
sewage  upon  low  lands  of  a  city,  even  though,  as  against  proprie- 
tors of  the  creek,  there  was  no  right  to  use  it  as  a  sewer  outlet.154 
And  if  the  public  has  a  right  to  take  purs  and  unpolluted  water 
water  from  a  stream  and  it  contains  the  germs  of  disease,  coming 
from  a  privy  or  cesspool  of  defendant,  maintained  by  him  on  the 
stream  or  its  tributary,  his  offense  would  be  a  public  one.  The 
wrong  would  be  against  the  whole  community  as  a  community, 
not  simply  against  an  individual  or  certain  individuals,  however 
numerous.  If  the  public  have  a  right  to  receive  pure  water 
through  the  agency  of  a  corporaton  legally  authorized  to  take  it, 
he  who  pollutes  it  offends  the  public.  If  it  is  not  shown  that  such 
coropration  has  the  right  to  take  such  water  for  the  public  the 
wrong  or  injury  through  such  pollution  is  only  a  private  one.155 
And  if  a  sewer  leading  from  a  hotel  is  so  negligently  constructed  or 
so  out  of  repair  as  to  cast  filth  and  foul  matter  of  a  noxious  and 
dangerous  character  upon  and  around  adjoining  property  causing 
inconvenience,  sickness  and  discomfort,  it  constitutes  a  nuisance.156 

153.  Mayor      and      Aldermen      of  *      154.  State,  State  Board  of  Health 

Knoxville        v.        Klasing         (Tenn..  v.  Jersey  City,  55  N.  J.  Eq.   116,  35 

1903),     76     S.     W.     814.       In     this  Atl.  835,  aff'd  55   N.  J.   Eq.  591,  39 

case  the  city  authorized  and  directed  Atl.    1114. 

the  deposit  of   garbage  in   the  sewer  Pollution    of    stream    by     niu- 

near    plaintitt's    residence,    and    this  nicipality. — See    note    84    Am.    St. 

created   a   nuisance   and  caused  sick-  Rep.    908-926. 

ness  and  depreciation  in  property  and  155.  Commonwealth    v.    Yost,    197 

the  city  was  held  liable  even  if  the  Pa.  St.   171,  174,  46  Atl.  845. 

construction  or   providing  the  sewer  156.  Adams    Hotel    Co.    v.    Cobb, 

were  held  to  be  a   legal  function.  3  Ind.  Ty.  50,  53  S.  W.  478. 

372 


Waters.  §284 

§  284.  Disposal  of  sewage — Municipalities,  etc. — Where  mu- 
nicipal, quasi-municipal  and  public  bodies  generally  proceed  to 
exercise,  or  do  exercise  their  powers  in  constructing  and  maintain- 
ing great  public  works  of  a  sanitary  nature,  such  as  a  sewerage  sys- 
tem, and  the  question  of  the  extent  of  or  limitations  upon  their 
powers  has  come  before  the  courts,  these  powers  and  the  rights  of 
the  public  and  of  private  individuals  in  connection  therewith  have 
occasioned  much  discussion.  But  notwithstanding  certain  de- 
cisions not  in  harmony  herewith,  it  may  be  stated  that  even  though 
a  municipality  or  other  body  has  power  to  construct  and  maintain 
a  system  of  sewers,  and  although  the  work  is  one  of  great  public 
benefit  and  necessity,157  nevertheless,  such  public  body  is  not  justi- 
fied in  exercising  its  power  in  such  a  manner  as  to  create  by  a  dis- 
posal of  its  sewage  a  private  nuisance  without  making  compensa- 
tion for  the  injury  inflicted  or  being  responsible  in  damages  there- 
for or  liable  to  equitable  restraint  in  a  proper  case,  nor  can  these 
public  bodies  exercise  their  powers  in  such  a  manner  as  to  create 
a  public  nuisance  for  the  grant  presumes  a  lawful  exercise  of  the 
power  conferred  and  the  authority  to  create  a  nuisance  will  not  be 
inferred.158  It  therefore  constitutes  a  nuisance  to  pollute  and  con- 
taminate a  stream  by  emptying  sewage  of  a  city  therein,139  render- 

157.  "The  police  power  of  the  tablish  sewerage  system.  City  of 
State  as  exercised  by  itself  or  any  Waycross  v.  Hank,  113  Ga.  963,  39 
of  its  delegated  or  subordinate  S.  E.  577.  See,  also,  Butler  v.  Thom- 
agencies  includes  as  one  of  the  objects  asville,  74  Ga.  57 ;  Eobb  v.  La 
of  its  legitimate  exercise  the  preser-  Grange,  158  111.  21,  42  N.  E.  77, 
vation  of  the  health  of  the  people.  modifying  57  111.  App.  386;  examine 
Under  congested  municipal  conditions  City  of  Mansfield  v  Balliett,  65  Ohio 
this  is  especially  true.  The  estab-  St.  451,  63  N.  E.  86,  58  L.  R.  A.  628, 
lishment  of  a  sewerage  system  ample  given  in  full  "appendix  A"  at  end  of 
in  size  and  perfect  in  its  workings  chapter  14.  See  sections  throughout 
has  been  considered  both  essential  this  chapter  and  chap.  6,  herein,  as 
and  necessary  by  municipal  author-  to  legalized  and  stautory  nuisances, 
ities  to  the  preservation  of  the  public  Although  municipality  can 
health  in  both  ancient  and  modern  construct  sewer  yet  it  must  not  in 
times."  2  Abbott's  Munic.  Corp.  (Ed.  so  doing  create  a  nuisance  on  land 
1906),   §   437.  of  a  private  person.     Morton  v.  City 

158.  City    cannot    create    nui-  of   Chester,   2   Del.   Co.    R.   454. 
sance   dangerous   to   life  and   health  159.  City  of  Birmingham  v.  Land, 
though    plenary   power  exists   to   es-  137  Ala.  538,  34  So.  613. 

373 


§285  Waters. 

ing  it  unwholesome,  impure  and  unfit  for  use.160  But  a  discharge 
of  sewage  by  a  city  upon  a  person's  land  is  not  a  nuisance  per  se, 
although  one  prima  facie.161 

§  285.  Same  subject  continued. — A  grant  of  power  carries 
with  it  authority  to  do  those  things  necessary  to  the  exercise  of  the 
power  granted.162  But  a  city  has  no  right  to  construct  a  sewer  so 
as  to  concentrate  the  offal  and  filth  of  a  city,  which  is  a  nuisance 
to  the  public,  and  discharge  it  upon  the  premises  of  an  individual ; 
and  it  is  not  a  defense  or  excuse  to  show  that  such  sewer  or  drain 
was  constructed  of  the  best  material,  and  the  work  performed  in 
the  most  skillful  manner,  and  the  plan  on  the  most  approved 
model.  In  performing  such  duties  a  city  is  required  to  construct 
smch  improvements  in  such  manner  as  to  avoid  injury  to  individ- 
ual property.  If  a  public  nuisance,  there  being  no  means  of 
making  proper  drainage  without  injury  to  individuals,  the  com- 
munity for  whose  benefit  it  is  constructed,  through  their  corporate 
government,  by  condemnation  or  otherwise,  should  make  compen- 
sation ;  the  burden  of  a  nuisance  should  not  be  imposed  on  one  or  a 
few  citizens.163  So  a  city  must,  where  its  outfalls  of  sewers  are 
made  into  tidal  waters  make  them  in  such  a  manner  that  the  de- 
posits from  them  will  be  promptly  removed  by  the  reflex  of  the 
tides,  so  that  they  will  not  create  a  nuisance,  either  to  the  public 
health  or  the  right  of  navigation,  or  they  must  provide  for  their 
speedy  removal  in  some  other  mode ;  and  the  very  act  of  accumu- 
lating and  permitting  to  remain  large  masses  of  filth  borne  down 
by  sewers  in  a  place  where  they  are  prejudicial  to  public  health  is 
per  se  conclusive  proof  of  negligence  sufficient  to  sustain  the 
charge  of  nuisance.164  Xor  are  towns  justified  in  doing  an  act, 
lawful  in  itself,  in  such  a  manner  as  to  create  a  nuisance  any 
mors  than  individuals,  and  if  a  nuisance  is  thus  created  whereby 
another  suffers  damage,  towns,  like  individuals,  are  responsible. 

160.  Mason  v.  City  of  Mattoon,  95  163.  City  of  Jacksonville  v.  Lam- 
Ill.  App.  525.                                                    bert,  62  111.  519,  521,  per  Walker,  J. 

161.  Vickers  v.   City  of  Durham,       See  note  179  below. 

132  X.  C.  880,  44  S.  E.  685.    See  note  164.  State  v.  Portland,  74  Me.  268, 

179  below.  272,  43  Am.  Rep.  586. 

162.  Willson  v.  Boise  City  (Idaho, 
1899),  55  Pac.   887. 

374 


Waters.  §  285 

And  although  the  authority  of  a  town  to  act  is  clear,  and  its  duty 
imperative,  it  is  nevertheless  subject  to  this  qualification,  inter- 
posed for  the  protection  of  others,  that  their  authority  shall  be  so 
exercised  and  the  duty  discharged  in  such  a  manner  as  to  occasion 
no  wanton  injury  to  the  property  or  rights  of  other  persons,  natural 
or  artificial.165  Again,  whether  a  certain  action  taken  by  a  munici- 
pality relating  to  the  construction  and  use  of  sewers  is  or  is  not 
within  the  lawful  powers  of  the  municipality,  the  use  of  such 
sewers  to  the  direct  damage  of  a  private  individual  constitutes  an 
actionable  wrong.166  And  if  a  municipal  corporation  causes  its 
sewage  to  be  emptied  into  a  natural  watercourse,  thereby  creating 
a  nuisance,  inflicting  special  and  substantial  damages  to  a  riparian 
proprietor,  it  is  liable  in  an  action  for  the  damages  thereby  sus- 
tained.167 So,  while  a  town  may  construct  and  use  drains  to  carry 
off  from  the  premises  the  sewage  of  its  public  buildings,  as  well  as 
the  surface  water  from  its  highways,  it  is  liable  to  the  same  extent 
as  an  individual  for  the  direct  injury  which  such  sewage,  if 
drained  into  a  stream,  causes  to  a  riparian  proprietor  by 
the  deposit  of  sewage  and  sediment  from  sewage  offensive  from 
its  appearance  or  smell.168  If  there  is  a  natural  watercourse  on  the 
land  of  one  person,  a  sewer  emptying  into  it,  constructed  and 
maintained  by  another,  whether  a  natural  parson  or  a  municipal 
corporation,  which  increases  the  flow  through  the  watercourse,  to 
the  injury  of  the  land,  is  prima  facie  wrongful  and  a  nuisance.169 
In  a  Tennessee  case,170  it  is  said  by  McAllister,  J. :  "  Lastly,  it  is 
insisted  on  behalf  of  appellants  that  the  location  and  construction 
of  the  sewer  was  the  exercise  by  the  county  of  a  governmental 
power,  and  the  discretion  committed  to  it  cannot  be  controlled  by 
the  courts,  unless  a  clear  abuse  of  its  power  be  shown.     It  is  true, 

165.  Mootry  v.  Town  of  Danbury,       Cleveland,   25  Ohio  Civ.   Ct.  R.   380, 
45  Conn.  550,  558,  29  Am.  Rep.  703,       384. 

per  Carpenter,  J.,  quoting  from  Dun-  168.  Watson    v.    New   Milford,    72 

bury  &  Norwalk  Rd.  Co.  v.  Town  of  Conn.   561,  45   Atl.   167,   77   Am.   St. 

Norwalk,  37  Conn.   109,  119.  Rep.    345. 

166.  Watson   v.   New  Milford,   72  169.  O'Brien  v.  City  of  St.  Paul, 
Conn.  561,  45  Atl.   167,   77  Am.   St,  18  Minn.  J.   176,  Gilf.  163. 

Rep.  345.  170.  Pierce  v.  Gibson  County,  107 

167.  Standard  Bag  &  Paper  Co.  v.       Tenn.  233,  64  S.  W.  33,  55  L.  R.  A. 

477,  89  Am.  St.  Rep.  940, 

375 


§  286  Waters. 

as  argued,  that  the  necessity  of  a  sewer,  its  location  and  general 
plan,  are  matters  which  involve  the  exercise  of  discretion,  and  or- 
dinarily the  courts  will  not  interfere.171  But  it  is  well  settled  that 
a  municipality  or  county,  in  the  construction  of  a  public  work,  is 
not  privileged  to  commit  a  nuisance,  to  the  special  injury  of  the 
citizens,  and  for  such  act  is  liable  as  a  private  individual  in 
damages,  or  it  may  be  restrained  by  the  writ  of  injunction."  m 
And  in  another  case  in  the  same  State  it  is  said  that :  "  The  author- 
ities agree  that  a  municipality,  in  pursuing  a  public  work,  is  not 
privileged  to  commit  a  nuisance,  to  the  special  injury  of  the  citizen, 
and  if  it  does,  it  must,  as  would  a  private  individual,  respond  in 
damages  therefor."  173 

§  286.  Same  subject  continued — Application  of  rule. — This 
rule  above  applies:  to  the  deposit  of  sewage  in  a  river,  polluting 
the  air  and  water  of  the  neighborhood  and  filling  up  a  mill  pond 
fed  by  such  stream  and  the  nuisance  in  such  a  case  is  both  public 
and  private  ;174  to  a  discharge  which  so  pollutes  the  waters  of  a 
running  stream  that  its  proper  use  is  destroyed  and  the  health  of 
those  living  near  is  endangered  ;175  to  the  discharge  of  sewage  a 
short  distance  above  the  land  of  a  person  into  a  stream  passing 
through  his  land  and  rendering  it  unfit  to  water  stock  or  for  har- 
vesting ice  for  domestic  purposes;176  to  a  case  where  the  use  of 
water  for  domestic  purposes  is  destroyed  and  deposits  are  made  on 
land  whereby  it's  value  is  depreciated  ;177  to  the  discharge  of  sewage 
into  a  stream  which  flows  across  a  person's  premises  into  an  arti- 
ficial basin,  constructed  for  domestic  use,  polluting  the  same  and 
depositing  filthy  sediment  on  its  banks  ;178  to  the  discharge  of  sew- 

1.71.  Citing   Horton    v.    Nashville,  1,75.  Todd      v.      City      of      York 

4  Lea,   37;   Chattanooga  v.   Reid,   19  (Neb.),  92  N.    W.    1040. 

Pickle,  616.  176.  Dwight    v.    Hayes,     150    111. 

172.  Citing  Chattanooga  v.  Dovvl-  273,  41  Am.  St.  Rep.  367,  37  N.  E. 
ing,    17   Pick.    (Tenn.)    345;    Atlanta  218,  aff'g  49  111.  App.  530. 

v.  Warnock,  91  Ga.  210.  23  L.  R.  A.  177.  Valparaiso  v.  Moffit,   12  Ind. 

301.  App.  250,  39  N.  E.  909.     See  49  N. 

173.  Chattanooga  v.  Dowling,  101       E.  600,  19  Ind.  App.  314. 

Tenn.  R.  345,  47  S.  W.  700.  178.  Chapman  v.  City  of  Roches- 

174.  Morgan  v.  Danbury,  67  Conn.  ter,  110  N.  Y.  273,  18  N.  E.  88,  13 
484,  35  Atl.  499.  Cent.   Rep.   426,    1    L.   R.    A.    296,   6 

376 


Waters.  §  286 

age  upon  private  lands;179  to  the  emptying  of  the  greater  part  of 
village  sewage  upon  a  farm,  creating  a  nauseating  stench  ;180  to  the 
pollution  of  a  stream  by  discharge  of  sewage  from  an  almshouse 
and  other  public  buildings  into  reservoirs  from  which  it  spreads 
upon  the  lands  of  a  riparian  proprietor,  to  his  injury  ;181  to  the  dis- 
charge of  sewage  and  water  over  private  land,  through  gullies,  in  a 
volume  exceeding  the  natural  flow,  thereby  creating  a  nuisance  ;182 
to  restrain  the  construction  of  an  additional  sewer  which  will  at  a 
certain  season  of  the  year  create  offensive  deposits  on  land,  and 
also  increase  the  pollution  of  a  creek  and  lake  ;183  to  restrain  the 
construction  of  a  sewer  which  will  discharge  its  sewage  into  a  tidal 
stream  and  so  impair  the  value  of  near-by  corporate  property  and 
create  at  certain  times  an  offensive  stench  affecting  the  officers  and 
employes  of  the  corporation  ;184  and  to  restrain  such  pollution  of  a 
stream,  even  though  health  is  not  injured  thereby,  where  the  right 
to  the  enjoyment  and  free  use  of  land  is  diminished  in  part  and 
the  polluted  water  is  offensive  to  the  senses  and  injurious  to 
health.185  So,  a  natural  watercourse  adopted  as  a  sewer  cannot 
for  that  reason  be  connected  with  a  nuisance  per  se,  so  that  sick- 
ness and  death  will  probably  be  occasioned  thereby  to  those  ripar- 

Am.  St  Rep.  366,  18  N.  Y.  St.  R.  28  N.  E.  416,  modifying  1  N.  Y.  Supp. 
133.  456,  17  N.  Y.  St.  R.  305,  28  VV.  D. 
1,79.  Beach  v.  Elmira,  58  Hun  (N.  534.  See,  also,  cases  cited  in  notes 
Y.),  606,  (Mem.)  11  N.  Y.  Supp.  913,  161,  163,  last  preceding. 
34  N.  Y.  St.  R.  522.  See,  also,  Mc-  180.  Dierks  v.  Addison  Twp.  High- 
Bride  v.  Akron,  12  Ohio  C.  C.  610.  way  Commrs.,  142  111.  107,  31  N.  E. 
3  Ohio  Dec.  607.  496. 

When  a  municipal  corporation  181.  Lefrois    v.    Monroe     County, 

discharges   or  threatens   to    dis-  162  N.  Y.  563,  57  N.  E.  185,  50  L.  R. 

charge  sewage   upon   private  lands  A.  206,  rev'g  48  N.  Y.  Supp.  519,  24 

from  the  outlet  of  a  permanent  sewer  App.   Div.   421. 

without  having  acquired  the  right,  the  i82.  Cox  v.  Essenden  (Australia) . 

owner  is  entitled  to  restrain  the  in-  27  Chicago  Leg   News    33 

jury  committed  or  threatened,  by  the  183.  Gale    v.    City    of    Rochester, 

judgment  of  a  court  of  equity,  and  is  71  N.  Y.  Supp.  986,  35  Misc.  465. 

not    confined    to    a    recovery    of    his  184.  Sayre  v.    Newark,   58    N.   J. 

damages  in  action  of  trespass.     New  Eq.  136,  42  Atl.  1068. 

York,  C.  &  H.  R.  R.  Co.  v.  Rochester,  185.  Peterson  v.  Santa  Rosa,  119 

127  N.  Y.  591,  40  N.  Y.  St.  R.  193,  Cal.  387,  51   Pac.  557. 

377 


§§  287,  288  Waters. 

ian  proprietors  who  use  the  polluted  waters.185  And  even  though 
the  stream  polluted  by  sewage  has  a  partially  subterranean  course, 
if  such  course  is  ascertainable  and  defined,  the  owner  of  a  farm 
through  which  the  stream  flows  and  who  is  damaged  by  the  loss  of 
the  use  of  the  water  for  domestic  purposes  and  for  stock  can  re- 
cover for  such  damage.187 

§  287.  Municipal  liability — Distinction  between  plan  and  con- 
struction— Maintenance  or  use — Sewage. — As  to  the  liability  of 
a  municipality  for  pollution  by  sewage  of  the  waters  of  a  stream 
a  distinction  is  made  between  pollution  or  injury  therefrom,  at- 
tributable to  the  plan  for  sewage  and  that  occasioned  by  improper 
construction,  negligence  in  maintenance  or  by  unreasonable  or 
wrongful  use,  recovery  being  precluded  for  pollution  in  the  former 
but  a  liability  and  remedy  existing  in  the  latter  case  against  the 
municipality.188 

§  288.  English  decisions — Public  bodies  generally — Pollution 
of  waters — Sewage. — The  court  has  power  to  interfere  with  a 
public  body  in  the  exercise  of  powers  conferred  by  act  of  parlia- 
ment, where  the  exercise  is  not  bona  fide.  Where  powers  are  so 
conferred,  the  court  will  not  assume  that  the  exercise  of  them  will 
create  a  nuisance.189  Where  a  board  of  works  is  intrusted  by 
statute  with  the  performance  of  certain  public  duties,  their  posi- 
tion is  very  different  from  that  of  a  company  carrying  on  a  specu- 
lative undertaking  for  their  own  benefit,  and  prima  facie  it  will  be 
assumed  as  to  the  public  body  that  they  are,  in  carrying  on  any 
authorized  work,  exercising  their  powers  in  the  manner  best  cal- 
culated to  carry  out  the  public  undertaking  committed  to  them ; 

186.  Commonwealth  v.  Yost,  11  ministerial  capacity  and  as  to  lia- 
Pa.  Super.  Ct.  323.  bility  generally,  see  Chicago  v.  Nor- 

187.  Good  v.  Altoona,  162  Pa.  ton  Milling  Co.,  97  111.  App.  651, 
493,   42    Am.    St.   Rep.    840,    29    Atl.  aff'd   63   N.   E.    1043. 

741.  189.  Biddulph     v.     St.     George's 

188.  Merrifield  v.  City  of  Worces-  Hanover  Square  Vestry,  3  De  G.  J. 
ter,  110  Mass.  216,  14  Am.  Rep.  592.       &  S.  493,  33  L.  J.  Ch.  411;  9  Jur.   (U. 

Distinction  between  planning  S.)  953;  8  L.  T.  558;  11  W.  R. 
and  constructing  as  to  judicial  and       739. 

378 


Waters.  §  288 

but  even  though  such  public  bodies  have  legislative  authority  to 
perform  an  act  they  cannot  exceed  their  powers  by  so  doing  the 
act  authorized  as*  to  create  a  nuisance.190     So,  in  another  case,  a 
local  beard  of  health  was  held  not  justified  in  polluting  the  surface 
water  which  flowed  by  an  open  gutter  into  a  canal,  by  diverting  it 
into  a  sewer,  and  passing  the  sewage  into  it.191     So,  where  sewage 
matter   was    deposited    in    the    river    Thames,   the   question   said 
to  be  raised  for  the  first  time,  as  regarded  a  river  of  such  a  width, 
bulk  and  flow  of  water,  was  how  far  any  system  of  drainage  could 
be  taken  to  be  a  public  nuisance  and  the  court  said  in  substance 
that  these  large  navigable  rivers  were  not  formerly  recognized  with 
much  interest  by  the  legislature,  except  for  the  purposes  of  navi- 
gation and  as  a  means  of  draining  the  surrounding  country  and 
thus  preventing  inundations.     And  coming  to  the  question  of  the 
existence  or  not  of  a  nuisance  it  was  said  that  in  a  large  public 
river  for  all  the  purposes  of  drainage,  land  drainage,  navigation, 
fishing,  domestic  uses,  and  watering  cattle,  there  must  necessarily 
be  annoyance  to  the   inhabitants  on  the  banks,   which  was  dis- 
tinguishable from  legal  nuisance,  and  must  be  submitted  to,  to  a 
certain  extent.     "  The  introduction  of  steamers,  by  churning  up 
;the  water  with  their  paddles,  no  doubt,  caused  great  inconven- 
ience to  persons  in  wherries;  but  no  one  in  such  a  case  would 
be  entitled  to  complain  as  of  nuisance.     So  with  respect  to  bathing 
or  fishing,  although  persons  might  be  inconvenienced  in  particular 
spots  of  the  river,  such  inconvenience  would  not  amount  to  a  nuis- 
ance.    The  question  is  one  of  degree,  and  some  slight  degree  of  in- 
convenience in  navigable  waters  would  not  justify  the  interference 
of  the  court.     If,  however,  the  evil  becomes  of  sufficient  magnitude 
a  nuisance  exists,  whether  the  river  is  navigable  or  not,  and  the 
court  will  interfere."  192    Again,  a  water  works  company,  by  their 
special     act    incorporating    the     Water     Works     Clauses     Act,195 

190.  Atty.-General  v.  Metropolitan  192.  Atty.-General  v.  Kingston- 
Board  of  Works,  11  W.  R.  820,  2  N.  upon-Thames  Corporation,  34  L.  J. 
E.  312,  9  L.  T.  139,  1  H.  &  M.  298.       Ch.  481,  13   W.   R.   888,   11   Jur.   N. 

191.  Manchester-Sheffield    &    Lin-       S.  596,  12  L.  T.  665. 

colnshire  Ry.   Co.  v.  Worksop  Board  193.  1847    (st.    10    &    11    Vict.   c. 

of  Health,   23   Beav.    198,   5  W.   Re.       17). 
279,  26  L.  J.  Ch.  345,  3   Jur.   N.   S. 
304. 

379 


§  289  Waters. 

were  empowered  to  construct  a  reservoir  in  a  certain 
locality,  and  to  use  the  waters  which  flowed  into  a 
certain  river,  but  the  act  gave  the  company  no  power  of  acquiring 
the  land  eompulsorily,  and  did  not  provide  for  the  reservoir  being 
of  any  particular  construction ;  it  contained  provisions  for  keeping 
up  the  supply  of  water  in  the  river.  Another  private  act  of  the 
company,  passed  after  the  construction  of  the  reservoir,  recognized 
it  as  an  existing  work,  and  gave  the  company  certain  rights  against 
mill  owners  on  the  stream  as  regarded  the  quantity  of  water,  but 
saved  all  other  rights.  The  company's  works  fouled  the  river  with 
mud,  so  much  as  to  make  the  water  unfit  for  the  purposes  of  the 
trade  of  silk  dying  theretofore  carried  on  at  mills  of  the  plaintiff, 
on  the  river  bank.  It  was  held  that  there  was  nothing  in  the  acts 
to  take  away  the  plaintiff's  right  to  have  the  water  pure  and  in  its 
natural  state,  or  to  deprive  her  of  her  rights  of  action  at  law  for 
the  injury  sustained  thereby,  and  therefore  (the  damage  having 
been  proved  to  be  sustained)  to  avoid  multiplicity  of  actions  the 
plaintiff  was  held  entitled  to  an  injunction  restraining  the  nuis- 
ance.194 If  there  has  been  an  excess  of  the  statutory  powers  granted 
to  a  company,  but  no  injury  has  been  occasioned  to  any  individual, 
and  there  is  none  which  is  imminent  or  of  irreparable  consequence, 
it  is  held  that  the  attorney-general  alone  can  obtain  an  injunction 
to  restrain  the  exorbitance.195 

§  289.  Disposal  of  sewage — Statutory  authority — When  a 
nuisance. — If  power  is  expressly  conferred  by  statute  upon  a  pub- 
lic corporation,  as  in  the  matter  of  sewers,  it  carries  with  it  by 
implication  the  powers  necessary  for  its  proper  performance,  and 
also  the  corresponding  duties  and  obligations  which  grow  out  of 
the  exercise  of  that  power;  but  the  right  to  construct  an  outfall  of 
a  sewer  into  the  sea  does  not  include  a  right  to  create  a  public  or 
private  nuisance;  it  is  a  right  to  make  deposits  temporarily,  and 
not  a  right  to  injure  permanently  without  a  corresponding  lia- 

194.  Clowes   v.    Staffordshire   Wa-  195.  Ware  v.  Regent's  Canal  Co., 

terworks   Co.,   42   L.   J.   Ch.    107,   21       3  De  G.  &  J.  212,  28  L.  J.  Ch.  153; 
W.  R.  32,  L.  R.  8  ch.  125,  27  L.  T.       5  Jur.  (U.  S.)  25,  7  W.  R.  67. 
521;    Waterworks    Act,    1847     (10    & 
11   Vict.  c.  17),  §  6. 

380 


Wateks.  §  289 

bility.196  Nor  is  a  statutory  authority  a  defense  where  sewage  is 
cast  upon  private  lands  ;197  nor  for  polluting  a  stream  beyond  the 
city  limits  ;198  nor  without  at  least  compensation  therefor  can  sew- 
age be  discharged  into  a  fresh  water  river  under  a  statutory  auth- 

.  n  •    i  199 

ority  to  construct  sewers  in  accordance  with  maps ;      nor  can  sew- 
age be  discharged,  without  liability,  into  a  creek  through  an  ex- 
tension of  a  sewer  system  made  by  commissioners  appointed  by 
the  legislature  and  adopted  by  a  village.200     And  an  unnecessary 
exercise  of  power  to  the  injury  of  private  property  rights  and 
the  creation  of  a  nuisance  is  not  warranted  by  the  general  grant 
of  power  authorizing  a  sewer  system.201    Again,  the  mere  grant  to 
a  city  of  legislative  authority  to  build  sewers  for  the  convenience 
and  benefit  of  its  citizens  in  carrying  off  their  refuse  matter  and 
discharging  it  into  a  neighboring  stream  does  not  necessarily  make 
such  use  of  the  sewers  a  governmental  act  to  the  extent  of  exempt- 
ing the  city  from  all  liability  to  lower  riparian  proprietors  who 
are  injured  by  such  sewage.     The  discharge  of  the  accumulated 
filth  and  sewage  of  a  city  into  a  stream  in  such  quantities  that  it 
is  necessarily  carried  to  the  premises  of  a  lower  proprietor,  where 
it  causes  a  nuisance  dangerous  to  his  health  and  destructive  to  the 
value  of  his  property,   may   be  justifiable   upon   the  ground   of 
public  necessity,  but  only  upon  payment  of  compensation  for  the 
property  thus  taken.202     Again,  a  village  may  be  liable  for  dis- 
charging sewage  into  a  creek  through  a  sewer  extension  constructed 
under  legislative  sanction  without  regard  to  the  question  of  negli- 
gence in  constructing  such  extension.203 

196.  State  v.  Portland,  74  Me.  2G8,  200.  Moody   v.    Saratoga    Springs, 
272,  43  Am.  Rep.  586,  per  Barrons,  J.       45   N.   Y.    Supp.    365,    17    App.   Div. 

197.  Carmichael  v.  Texarkana,  94       207. 

Fed    561.  20 lu  Ednvundson    v.    Moberly,    98 

198.  Nolan    v.    New    Britain,    69       Mo.  523,  11  S.  W.  990. 

Conn.  668,  38  Atl.  703.  202.  Piatt  Bros.  &  Co.  v.  Water- 

199.  (Grey)  Simmons  v.  Patter-  bury,  72  Conn.  531  45  Atl.  154,  48 
son,  58  N.  J.  Eq.  1,  42  Atl.  749  L.  R.  A.  691,  77  Am.  St.  Rep.  335. 
(case  distinguishes  Rylands  v.  203.  Moody  v.  Saratoga  Springs, 
Fletcher,  L.  R.  3  H.  L.  330,  and  dis-  17  App.  Div.  207,  45  N.  Y.  Supp. 
approves  Merrifield  v.  Worcester,  110  365. 

Mass.  216,  14  Am.  Rep.  592). 


381 


£  290  Waters. 

§   290.   Disposal  of  sewage — Statutory  authority — When  no 
nuisance. — Notwithstanding    the    preceding    decisions    there    are 
cases  which   are  not  in  harmony  therewith,   or  which   hold  the 
contrary  doctrine.     Thus  it  is  decided  that  if  a  city  has  legislative 
authority  to  discharge  the  contents  of  its  sewers  into  a  river,  such 
city  is  not  chargeable  with  maintaining  a  public  nuisance  and  with 
respect  to  the  rights  of  a  private  riparian  owner  above  tide  water, 
he  will  not  be  allowed  an  injunction  to  restrain  the  usa  of  the 
sewers,  provided  the  city  compensates  him  for  the  deprivation  of 
his  property  rights,  the  city  having  incurred  a  large  expense  in  in- 
stalling its  sewer  system,   in  reliance  upon  legislative  authority 
with  long  acquiescence  upon  the  landowner's  part.204     The  argu- 
ments in  this  case  were  in  part  this:  that  the  title  of  riparian 
owners  along  such  river  extends  only  to  high  water  mark,  the  state 
is  the  absolute  owner  of  the  bed  of  the  stream.      Such  riparian 
owners  having  no  title  to  the  bed  of  the  stream,  are  not  entitled 
to  an  injunction  against  the  city  on  account  of  the  pollution  of  the 
stream.      The  title  of  riparian   owners  above  the  ebb   and  flow 
of  tide  extends  to  the  middle  of  the  stream,  subject  only  to  a  servi- 
tude to  the  public  for  purposes  of  navigation.     The  pollution  of 
the  river  by  sewage  constituted  the  taking  of  the  property  of  such 
owners,  which  the  legislature  could  not  authorize  except  upon  just 
compensation.     By  reason  of  the  great  injury  which  would  fall 
upon  a  city  by  restraining  the  continuous  use  of  its  sewerage  sys- 
tem, and  the  acquiescence  of  these  riparian  owners  above  where 
the  tide  flowed,  their  injury  being  comparatively  small,  it  would 
be  inequitable  to  grant  them  an  injunction.205      It  will  be  observed 
that  the  principle  of  compensation  for  the  taking  of  property 
is  a  factor  in  the  above  decision.206     But  the  following  Indiana 
decision  goes  to  such  a  length  that  it  may  fairly  be  said  that 

204.  (Grey)     Simmons    v.    Pater-       son,  60  N.  J.  Eq.  385,  45  Atl.  995,  83 
son,  GO  N.  J.  Eq.  385,  45  Atl.  995,  48        Am.  St.  Rep.  642. 

L.   R.   A.   717,  83   Am.   St.   Rep.   642.  206.  See  City  of  Mansfield  v.  Bal- 

See,  also,  Sayre  v.   Mayor  and  Com-  liett,   65   Ohio  St.   451,   63   N.  E.   86, 

mon  Council  of  Newark,  60  N.  J.  Eq.  58  L.  R.  A.  628,  given  in  full  "  Ap- 

361,   83   Am.    St.   Rep.   629,  45    Atl.  pendix  A"    at    end    of    chapter    14, 

985.  herein.     See,  also,    §  278,  herein,   as 

205.  (Grey)     Simmons    v.    Pater-  to  compensation. 


382 


Wateks.  §  291 

it  is  not  in  harmony  with  the  general  rule.  In  this  case  it  is  held 
that  equity  will  not  restrain  a  municipality  from  discharging  its 
sewage  in  a  natural  water  course,  where  it  acts  in  conformity 
with  the  statutes,  skilfully  and  without  negligence,  though  the 
waters  are  polluted  to  the  injury  of  lower  riparian  proprietors, 
and  where  there  is  no  other  natural  or  reasonably  possible  means 
of  drainage.207  In  a  Maine  case  it  is  held  that  if  a  city  has  a 
right  under  a  State  law  to  extend  a  sewer  across  river  flats  to  a 
point  below  low-water  mark  and  it  so  locates  a  sewer  no  remedy 
exists  against  the  city  unless  it  is1  shown  that  such  sewer  is  un- 
skilfully and  improperly  constructed  and  that  the  individual  seek- 
ing a  remedy  has  suffered  a  special  injury  thereby.  In  the  per- 
formance of  its  duty  to  the  public  in  locating  sewers  for  the  drain- 
age of  a  city,  the  city  council  acts  judicially,  and  for  such  act  the 
city  is  under  no  common  law  libability.  But  if  the  construction  is 
improperly  and  unskilfully  made  it  is  a  ministerial  act  for  which 
the  city  may  be  liable  to  the  party  injured  thereby.208  So  the 
ground  that  a  nuisance  will  be  created  upon  private  lands  is 
held  insufficient  to  warrant  an  injunction  against  carrying  on  a 
sewerage  system 


209 


§  291.  Disposal  of  sewage — Statutory  authority — English 
decisions. — Public  works  ordered  by  act  of  parliament  must  be 
so  executed  as  not  to  interfere  with  the  private  rights  of  individu- 
als;  and  in  deciding  on  the  right  of  a  single  proprietor  to  an 
injunction  to  restrain  such  interference,  the  circumstance  that  a 
vast  population  will  suffer  (e.  g.,  by  remaining  undrained)  unless 
his  rights  are  invaded,  is  one  which  the  court  cannot  take  into 
consideration.  So  where  the  council  of  the  borough  of  Birming- 
ham were  bound  by  a  local  act  of  parliament,  incorporating  the 
Towns  Improvement  Clauses  Act,210  effectually  to  drain  the  town, 
it  was  held,  that  they  were  not  justified  in  sc  carrying  on  their 

207.  City  of  Valparaiso  v.  Hagen,  582,  585,  22  Atl.  466,  per  Libbey,  J. 
153  Ind.  337,  48  L.  R.  A.  707,  54  N.  209.  Robb  v.  La  Grange,  57  III 
E.  1062,  74  Am.  St.  Rep.  305.  App.   386. 

208.  Attwood    v.    Bangor,   83   Me.  210.  10  &  11  Vict.  c.  34. 


383 


§  291  Waters. 

operations  for  this  purpose  as  to  drive  away  fish,  and  prevent 
cattle  from  drinking  of  the  water  of  a  river  at  a  part  seven  miles 
below  the  town  and  where  it  belonged  to  the  plaintiff.  It  was  also 
held  that,  assuming  the  inhabitant's  of  Birmingham  to  have  had 
before  their  act  a  right  to  drain  their  houses  into  the  river,  that 
circumstance  would  not  authorize  the  council  in  discharging  the 
sewage  in  such  a  manner  as  to  subject  the  plaintiff  to  the  incon- 
venience of  which  he  now  complained.211  So  a  local  board  of 
health  cannot  exceed  its  powers  as  a  public  body  by  using  and 
interfering  with  a  river  contrary  to  the  statute,  by  carrying  a 
sewer  in  the  fields  of  a  private  individual  without  his  consent, 
such  sewer  having  an  outlet  into  the  river  for  sewage  of  a  neigh- 
boring town;  such  individual  having  also  a  watering  place  for 
cattle,  but  not  being  the  owner  of  the  water  run  of  the  bed 
of  the  river,  and  in  such  case  an  injunction  will  lie  to  restrain  such 
board  from  proceeding  with  their  works.212  In  another  case  it  ap- 
peared that  the  Leeds  Improvement  Amendment  Act,  1848,  which 
incorporated  the  clauses  of  the  Towns  Improvement  Clauses  Act, 
1847,  as  to  making  and  maintaining  public  sewers  and  the  drainage 
of  houses,  "  except  so  far  as  they  or  any  of  them  are  inconsistent 
with  the  provisions  of  this  act,  or  are  expressly  varied  or  excepted 
by  this  act,"  and  by  section  6,  the  corporation  of  Leeds  was  author- 
ized to  construct  one  or  more  trunk  or  other  sewer  or  sewers, 
sufficiently  capacious  to  receive  the  foul  and  drainage  water  and 
filth  of  the  town,  and  to  convey  the  same  into  the  river  x\ire: — It 
was  held  that  the  power  to  drain  into  the  river  was  controlled  by 
the  London  Improvement  Clauses  Act,  sec.  24,  and  also  by  sec. 
107,  though  that  clause  was  not  expressly  incorporated  in  the 
local  act,  and  that  the  corporation  was  not  authorized  by  the  local 
act  to  create  a  nuisance  by  draining  into  the  river.213  It  was 
also  held  that  the  Towns  Improvement  Clauses  Act 
did  not  authorize  the  creation  of  a   nuisance  by  rendering  the 

211.  Atty.-General    v.    Council    of       Ch.  Rep.   294,  3   Eq.  R:   671,  1  Jur. 
Borough  of  Birmingham,  4  Kay  &  J.       N.  S.  578,  affg.   19  Beav.   485. 

528,  6  W.  R.  811.  213.  Atty.-General    v.    Leeds   Cor- 

212.  Oldaker    v.    Hunt,    3    W.    R.       poration,  39  L.  J.   Ch.  711,  J..  R.  5 
297,  6  De  G.  M.  &  G.  376,  55  Eng.       Ch.  583,  19  W.  R.   19,  aff.  22  L.  T. 

330. 

384 


Waters.  §  291 

water  unfit  for  human  and  animal  use,  in  the  drainage  of  towns 
into  public  rivers  thereby  directed.214  The  Lunatic  Asylums  Act, 
1845,  does  not,  by  requiring  the  justices  to  build  lunatic  asylums, 
impliedly  authorize  them  or  their  successors  to  allow  the  sewage 
from  the  asylums  to  create  a  nuisance.  It  was  also  held  that  it 
was  no  answer  to  an  application  for  an  injunction  to  say  that  the 
defendants  were  a  public  body  acting  in  the  discharge  of  public 
duties,  imposed  upon  them  by  act  of  parliament,  which  they  were 
unable  to  discharge  without  committing  the  nuisance.  Nor  was 
it  any  answer  to  say  that  the  committee  of  visitors  were  a  fluctu- 
ating body,  and  that  the  nuisance  had  not  originated  with  the 
individuals  composing  the  present  committee.215  When  statutory 
powers  are  conferred  under  circumstances  in  which  they  may  be 
exercised,  with  a  result  not  causing  any  nuisance,  and  new  and 
unforseen  circumstances  arise  which  render  the  exercise  of  them 
impracticable  without  causing  one,  the  persons  so  exercising  them 
are  liable  to  an  indictment.216  But  it  is  also  held  in  another 
English  case  that  where  a  nuisance  is  caused  by  any  act  which, 
independently  of  the  statute  would  have  given  a  cause  of  action 
to  any  person,  a  public  body  may  be  made  liable  in  damages,  or 
be  restrained  by  injunction,  unless  they  can  show  a  justification 
under  the  powers  of  the  statute.217  It  is  also  decided  that  in  the 
absence  of  negligence  a  local  authority  is  not  liable,  under  section 
19  of  the  Public  Health  Act,  1875,  for  a  nuisance  caused  by  the 
overflow  of  a  sewer.218  Again,  a  vestry  sanctioned  the  drainage 
of  certain  houses  by  means  of  cesspools  with  overflow  pipes  con- 
necting with  main  pipes,  sewage  passed  into  the  main  pipes  and 
from  thence  into  a  watercourse  and  caused  a  nuisance  within 
the  district  of  an  adjoining  local  board,  both  the  vestry  and  local 

214.  Atty.-General     v.      Kingston-       191;   11  Jur.   (U.  S.)   769;   13  W.  R. 
on-Thames  Corporation,  13  W.  R.  888,       892. 

11  Jur  N.  S.  596,  12  L.  T.  665,  34  L.  217.  Glossop    v.    Heston    &    Isle- 

J.  Ch.  481.  worth  Local  Board,  49  L.  J.  Ch.  89, 

215.  Atty.-General        v.        Colney  12  Ch.  D.  102,  40  L.  T.  736. 
Hatch  Lunatic  Asylums,  38  L.  J.  Ch.  218.  Stretton's      Derby      Brewing 
265,  L.  R.  4  Ch.    146,  19  L.  T.  708,  Co.  v.   Derby  Corporation,   63,  L.  J. 
17   W.   R.  240.  Ch.  135   (1894),  1  Ch.,  431,  8  R.  608, 

216.  Reg.  v.  Bradford  Navigation  69  L.  T.  791,  42  W.  R.  583. 
Co.,  6   B  &  S.  631;  34  L.   J.   Q.   B. 

385 


§§292,  293  Wateks. 

board  had  power  to  proceed  with  respect  to  this  nuisance.  The 
latter  sought  an  injunction  against  the  former  to  restrain  the 
nuisance  and  it  was  held  that  it  was  not  a  proper  ground  for 
an  injunction  against  a  local  board  that  they  were  not  properly 
exercising  their  powers'  or  performing  their  duties.219  Where  a 
local  board  have  not  themselves  constructed  sewers  which  are  a 
nuisance,  but  only  permitted  them  to  be  used  by  inhabitants  who 
have  acquired  a  prescriptive  right  to  use  them,  the  local  board 
do  not  "  cause  or  suffer  "  sewage  to  flow  into  the  Thames  within 
the  meaning  of  section  64  of  the  Thames  Navigation  Act,  1866,  and 
cannot  be  convicted  of  a  misdemeanor  under  that  act.220  The 
authority  over  sewers,  and  the  drainage  powers  given  by  Parlia- 
ment to  local  boards,  do  not,  it  is  held,  authorize  the  committal  of 
a  nuisance  by  the  boards'  in  their  exercise  of  such  powers.221 

§  292.  Distinction  between  nuisances  of  necessity  in  exercise 
of  statutory  powers  and  those  from  secondary  c.auses. — In  an 
English  case  a  distinction  is  made  between  nuisances  which  of 
necessity  arise  in  the  exercise  of  parliamentary  powers,  and 
nuisances  which  do  not  necessarily  or  primarily  arise,  but  are 
occasioned  by  secondary  causes  within  the  control  of  persons  exer- 
cising such  powers  as  where  such  nuisances  are  not  the  necessary 
result  of  the  work  but  arise  from  some  accidental  circumstance.222 

§  293.  Municipality  acquiring  land  beyond  its  limits  for 
sewage  system. — A  municipal  corporation  has  power  unless  pro- 
hibited by  its'  charter,  to  acquire  land  beyond  its  limits  for  the 
purpos'e  of  perfecting  a  system  of  drainage,  or  sewerage  when  requi- 
site for  the  protection  of  the  lives  and  health  of  its  inhabitants 
within  its  corporate  limits  notwithstanding  the  general  rule  pre- 

219.  Atty.-Genl.  v.  Clerkenwell  221.  Atty.-Gen.  v.  Hackney  Local 
Vestry,  60  L.  J.  Ch.  788  (1891),  3  Board,  44  L.  J.  Ch.  545,  L.  R.  20  Eq. 
Ch.  527,  65  L.  T.  312,  40  W.  R.  185;        626. 

Nuisances    Removal   Act,    1855;    Me-  222.    Atty.-Genl.    v.    Metropolitan 

tropolis  Local  Management  Act,  1855;  Board  of  Works,  11  W.  R.  820,  9  L. 

Public  Health  Act.  T.    139,    2    N.    R.    312,    1    H.   &    M. 

220.  Reg.  v.  Staines  Local  Board,  298. 
60  L.  T.  261,  53  J.  P.  358. 

386 


Waters.  §§  294,  295 

eludes  such  a  corporation  from  acquiring  real  estate  outside  its 
corporate  limits  or  from  lawfully  performing  any  act  beyond  such 
limits  unless  expressly  so  authorized  by  law.223  But  under  an 
Illinois  decision  neither  a  city  nor  a  village  can  create  a  nuisance 
by  depositing  its  sewage,  beyond  the  incorporated  limits,  upon  the 
property  of  an  individual.224  And  the  act  of  a  city  in  appro- 
priating a  stream  for  sewerage,  even  under  a  statutory  authoriza- 
tion to  appropriate  any  stream  or  part  of  a  stream  running 
in  or  through  a  city,  does  not  bind  a.  non-resident  through  whose 
land  the  stream  appropriated  also  runs. 


225 


§  294.  Discharging  sewage  beyond  jurisdiction. — It  is  de- 
clared in  an  English  case  that:  "There  is  not,  so  far  as  I  can 
find,  anything  in  the  piovisions  of  the  Acts  of  Parliament,  under 
which  the  defendants  are  acting,  to  authorize  them  to  commit 
a  nuisance  upon  property  beyond  the  range  of  their  jurisdiction. 
They  could  not  possibly,  so  far  as  I  can  see,  be  justified  in  dis- 
charging the  whole  of  the  sewage  of  Tunbridge  Wells  bodily  upon 
land  not  belonging  to  them,  and  lying  immediately  upon  the  limits 
to  which  their  powers  extend,  and  if  they  have  no  right  to  do  this, 
neither  can  they,  as  it  seems  to  me,  have  the  right  to  send  down 
the  sewage  upon  an  estate  which,  although  more  distant,  would 
be  prejudicially  affected  by  it."  m 

§  295.  Statutory  condition  precedent — Sewer  obstructing 
navigable   waters. — Although    a   statute   confers   power  to  erect 

223.  Langley  v.  Augusta,  118  Ga.  doubting   Loyd   v.   Columbus,   90   Ga. 

590,  45  S.  E.  486,   citing  Coldwater  20. 

v.    Tucker,    36    Mich.    474,    24    Am.  224.  Robb  v.  La   Grange,    158   111. 

Rep.   601;    Tied   Mun.   Corp.    §   294;  21,   42  N.    E.    77,   modifying   57    111. 

Ell.   Rds.   &   Sts.,    §   468;    10   Am.   &  App.   386. 

Eng.  Ency.  L.   (2nd  Ed.)  247;  1  Dill.  225.  Nolan    v.    New    Britain,    69 

Mun.  Corp.   §  440,  p.  263    (note)  ;    2  Conn.  668,  38  Atl.  763. 

id.  p.  1333    (note)  ;   Lester  v.  Mayor,  226.  Golsmid  v.    Tunbridge   Wells 

69  Miss.   887 ;   Cummins  v.  Seymour,  Improvement  Commissioners,  35  L.  J. 

79  Ind.  491,  41  Am.  Rep.  618;   Coch-  Ch.  382,  L.  R.  1  Ch.  349,  12  Jur.   (N. 

ran  v.  Park  Ridge,  138  111.  295.    Not-  S.)   308,  14  L.  T.  154,  14  W.  R.  562, 

ing  as   contra  Village  of   South  Or-  per  Turner,   L.   J.      See   Matheny  v. 

ange    v.    Whittingham,    58    N.   J.    L.  City  of   Aiken,  68   S.   C.    163,  47   S. 

655,  35  Atl.  407,  and  criticising  and  E.  56. 

387 


§§  296,  297  Waters. 

works  an  the  soil  or  bed  of  a  navigable  river  jet  if  as  a  condition 
precedent  the  approval  of  the  board  of  admiralty  is  necessary  it 
must  be  obtained,  and  where  it  is  not  obtained  and  a  pipe  con- 
nected with  a  sewer  is  carried  some  distance  into  such  waters  and 
protected  by  driving  piles'  into  the  bed  of  the  river  it  constitutes 
an  obstruction  to  free  navigation  and  is  actionable.227  So  a  sewer 
constructed  under  statutory  authority  with  an  outfall  into  a  public 
tide-water. dock  must  be  so  constructed  as  not  to  materially  ob- 
struct or  interfere  with  navigation,  and  to  create  a  nuisance  by 
allowing  deposits  to  accumulate  and  remain  there  and  also  seri- 
ously injure  the  rights  of  wharf  owners.228 

§  296.  Sewage — Act  creating  nuisance  absolutely  necessary 
to  execute  statutory  power. — It  is  held  in  an  English  case  that 
if  a  public  body,  which  has  powers  given  it  by  a  statute  for  the 
performance  of  a  particular  object,  exercises  its  powers  so  as  to 
injure  the  property  of  others,  it  is  responsible  for  the  injury, 
unless  the  act  done  was  absolutely  necessary  for  the  performance 
of  the  object  of  the  statute.229 

§  297.  Pollution  of  waters  by  sewage  or  otherwise — Purify- 
ing, disinfecting  and  deodorizing. — Although  the  construction  of 
works  in  order  to  free  sewage  from  offensive  and  noxious  matter 
and  the  taking  of  lands  for  such  treatment  isi  authorized  by 
statute,  nevertheless  such  authorization  does  not  warrant  depositing 
sewage  in  canals  and  tanks  so  that  it  causes  sickness  to  the  com- 
munity and  to  the  owner  of  adjoining  premises'  into  which  pene- 
trate, offensive  and  noxious  odors   arising  from  such   deposits.230 

227.  Browlow       v.       Metropolitan  and  note.     See,  also,  Brayton  v.  City 

Board  of  Works,  13  C.  B.  N.  S.  768,  of  Fall  River,  113  Mass.  218,  18  Am. 

31  L.  J.  C.  P.  140,  8  Jur.  N.  S.  891,  Rep.  470. 

10  W.   R.  384,  6   L.  T.   187,   affg.   12  229.  Atty.-Gen.    v.    Colney    Hatch 

W.  R.  871,  16  C.  B.  N.  S.  546,  33  L.  Lunatic   Asylum,   38   L.   J.   Ch.   265; 

J.  C.  P.  233;  21  and  22  Vict.  v.  104  L.   R.  4  Ch.    146;    19   L.  T.   708;    17 

c.   27.  W.  R.  240. 

228.  Franklin  Wharf  Co.  v.   Port-  230.  Bacon  v.  Boston,    154   Mass. 

land.    67    Me.    46,    24    Am.    Rep.    1,  100,  28  N.  E.  9. 

388 


Waters.  §  297 

As  stated  elsewhere  the  discharge  of  sewage  by  a  city  upon  the 
premies  of  a  person  is  not  a  nuisance  per  se  but  only  prima'  facie. 
In  determining  whether  it  constitutes  such  a  nuisance  as  to  afford 
a  o-round  for  equitable  interference  the  court  will  consider  the 
fact  that  such  sewerage  is  to  be  discharged  into  a  sewerage  disposal 
plant  and  to  be  purified  by  the  most  scientifically  approved 
methods  of  engineering  and  sanitation,  that  the  injury  is  antici- 
pated or  contingent  and  possible  only  and  that  it  is  not  shown 
that  irreparable  injury  will  result  or  that  there  is  not  an  adequate 
remedy  at  law,  nor  does  the  fact  that  the  method  prescribed  for 
assessing  the  damage  caused  by  taking  land  for  the  construction 
of  such  plant  is  illegal,  constitute  a  ground  for  injunction  to 
restrain  erection  of  the  plant.231  Again,  the  mere  fact  that  a 
city's  sewers  are  of  permanent  construction  does  not  render  per- 
manent also  the  nuisance  occasioned  by  them  in  poisoning  the 
waters  of  a  stream  and  so  injuring  stock  and  pasture,  for  in  such 
case  the  city  has  a  right  at  any  time  to  abate  the  nuisance  by 
proper  means  of  nitration  or  otherwise,  using  such  sanitary  meas- 
ures as  to  render  the  sewage  inocuous.232  "  In  this  respect  cases  like 
the  present  one  differ  from  Powers  v.  City  of  Council  Bluffs,233 
for  there,  as  was  observed  in  Hunt  v.  Iowa  Central  Ry.,234  '  the 
whole  injury  was  regarded  as  having  occurred  at  one  time,  and, 
that  time  having  been  more  than  five  years  prior  to  the  com- 
mencement of  the  suit,  it  was  held  to  be  barred.  The  injury  was 
of  such  a  character  as  to  be  beyond  the  defendant's,  power  to 
remedy.  It  would  be  compelled  to  go  on  to  lands  of  others  to 
erect  barriers  to  prevent  the  damage.  In  this  case,  as  is  shown  by 
the  evidence,  the  remedy  is  in  the  defendant's  own  hands,  by 
work  done  upon  its  own  land.  Again,  it  was  pointed  out  in 
Bennett  v.  City  of  Marion,235  that  the  injury  in  the  Powers  case 
was  beyond  the  city's  power  to  repair.  '  The  remedy  to  be  applied 
there,  if  any,  was  the  construction  of  a  wall  on  plaintiff's  prem- 
ises, where  defendant  had  no  right  to  go.     Here  the  remedy  could 

231.  Vickers    v.    Durham,    132   N.  233.  45    Iowa,   652,   24   Am.    Rep. 
C.  880,  44  S.  E.  685.  972. 

232.  Vogt    v.    City    of    Grinnell,  234.  86   Iowa,    15,  52  N.  W.  668, 
123  Iowa,  332,  98  N.  W.  782.  41  Am.   St.   Rep.  473. 

235.  119  Iowa,  473,  93  N.  W.  558. 

389 


§  298  Waters. 

be  applied  on  defendant's  own  premises,  and  there  can  be  no  doubt 
of  it's  duty  to  abate  the  nuisance.'  As  was  said  in  Hollenbeck  v.  City 
of  Marion,236  '  Modern  scientific  research  has  discovered  means  of 
disinfecting  and  deodorizing  sewage  so  that  it  is  practically  in- 
ocuous.     .     .     .     While  the  system  may  be  said  to  be  perma- 
nent, it  does  not  appear  that  the  nuisance  created  thereby  may 
not  at  any  time  be  abated  by  the  defendant  or  by  the  court.' 237 
It  is  said  that  the  wrong  considered  in  Powers  v.  City  of  Council 
Bluffs,238  and  other  like  cases,  consisted,  not  in  creating  a  nuisance 
where  the  party  had  no  right  to  be,  but  in  negligently  making  an 
improvement  where  the  right  to  construct   it  existed,   and  also 
that  the  doctrine  of  those  decisions  ought  not  to  be   extended. 
The  nuisance  consists  not  in  the  construction  of  the  sewers  in  an 
illegal  manner,  nor  where  the  city  had  no  right  to  place  them, 
but  in  pouring  the  filth  from  them  into  this  stream,  instead  of 
destroying  it  by  filtration  through  beds  of  sand,  and  the  use  of 
a  septic  tank,  thereby  rendering  the  sewage  inocuous.     Indeed, 
this  is  precisely  what  the  city  did  when  threatened  with  a  suit. 
A  temporary  excavation  for  filtration  was  made  immediately,  and 
an  appropriate  tank,  adequate  for  the  disposal  of  all  the  sewage, 
to  be  completed  by  the  first  of  December  following,  contracted 
for ;  thereby  demonstrating  that  the  nuisance  was  not  permanent. 
A  nuisance  cannot  be  permanent  which  can  be  abated  without  un- 
reasonable  expense   by    the   party   creating   it.' '       But   it  must 
appear,  in  order  to  prevent  the  award  of  an  injunction  based  upon 
existing  conditions   consequent   upon   the  discharge   of  sewerage 
into  a  running  stream  that  the  method  of  treatment  claimed  to 
render  the  water  clear  and  inodorous  does  render  it  potable  and 
fit  for  use.239 

§  298.  Same  subject — English  decisions. — Under  the  English 
Local  Government  Act  Amendment  Act240    the  provision  that  a 

236.  116  Iowa,  69,  89  N.  W.  210.  238.  45   Iowa,    652,   24   Am.   Rep. 

237.  See,  also,  Pettit  v.  Town  of       972. 

Grand  Junction,  109  Iowa,  352,  93  N.  239.  Peterson  v.  Santa   Rosa,    llfi 

W.    381;    Costello    v.    Pomeroy.     120       Cal.  387,  51  Pac.  557. 
Iowa.   213,  94   N.   W.   490.  240.  1861     (24    and    25    Vict.    c. 

61),  §  4. 

390 


Waters.  §  298 

local  board  shall  not  "  construct  or  use  any  outfall,  drain  or  sewer 
for  the  purpose  of  conveying  sewage  or  filthy  water  into  any 
natural  vyater  course  or  stream  until  such  sewage  or  filthy  or 
refuse  matter  be  freed  from  all  excrementitious  or  other  foul  or 
noxious  matter  such  as  would  affect  or  deteriorate  the  purity  and 
quality  of  the  water  in  such  stream  or  watercourse  "  operates  as 
a  condition  in  which  the  legislature  had  given  these  bodies  the 
privilege  of  making  outfall  drains  into  natural  streams  and 
watercourses,  and  the  words  "  So  as  to  deteriorate  or  affect  the 
quality  of  the  water,"  etc.,  means  the  water  at  the  point  of  dis- 
charge of  any  outfall  drain  and  not  the  water  in  the  stream  gen- 
erally. Therefore,  where  sewage  has  been  allowed  to  flow  direct 
into  a  natural  stream  it  constitutes  an  infringement  of  the  statute 
and  it  is  not  necessary  to  establish  a  case  of  actual  public* 
nuisance,  as  the  legislative  enactment  determined  that  any  deteri- 
oration of  the  quality  of  the  water  in  natural  streams  was  a  public 
injury,  and  an  injunction  would  issue  as  of  course,  although  a 
bill  to  abate  a  nuisance  alleged  to  be  occasioned  by  such  pollution 
would  be  dismissed,  there  being  no  evidence  of  a  nuisance.241  The 
Rivers  Pollution  Prevention  Act,  1876,  makes  it  an  offense  to 
cause  or  knowingly  permit  sewage  matter  to  flow  into  any  stream, 
but  provides  with  regard  to  sewage  matter  carried  into  a  stream 
along  a  channel  existing  at  the  date  of  the  act,  that  no  one  shall 
be  deemed  to  have  committed  an  offense  against  the  act  if  he 
uses  the  best  available  means  to  render  the  sewage  matter  harm- 
less. On  proceedings  being  taken  under  this  act  in  the  County 
Court  against  a  local  board  to  restrain  the  pollution  of  a  stream, 
the  judge  found,  on  the  plaintiff's  evidence,  that  the  defendant, 
who  had  succeeded  to  an  ancient  system  of  drainage  whereby  sew- 
age matter  was  carried  into  the  stream,  had  done  nothing  to  aggra- 
vate the  nuisance,  and  he  therefore  dismissed  the  complaint.  It  was 
held  by  the  Court  of  Appeal  (affirming  the  decision  of  the 
divisional  court),  that  there  was  evidence  that  the  defendants 
had  knowingly  permitted  sewage  matter  to  flow  into  the  stream, 
and  that  the  matter  ought  to  be  remitted  to  the  County  Court 

241.  Workington    Local    Board   v.       Ch.   118,  L.  R.   18  Eq.   172,  30  L.  T. 
Cockermouth   Local    Board,   44   L,   J.       590.  22  W.  R.  619. 


391 


§  298  Waters. 

judge  to  consider  whether  they  had  used  the  best  available  means 
to  render  it  harmless1.242 

Again,  a  public  body  was  authorized  by  act  of  parliament  to 
construct  and  maintain  a  system  of  sewers  and  drains,  and  was 
enabled  by  compulsory  purchase  to  obtain  the  necessary  lands 
for  the  erection  of  works  in  a  specified  spot  for  the  purification  of 
the  sewage,  and  for  the  conveyance  of  the  effluent  sewage  water 
along  a  specified  course,  terminating  in  a  specified  spot;  the 
public  body  was  also  prohibited  from  allowing  the  sewage  to  be 
discharged  into  a  river  until  after  it  had  been  subjected  to  a 
process  of  purification  prescribed  by  the  act.  It  was  held  that  so 
long  as  the  public  body  complied  with  the  requirements  of  the 
act,  they  were  not  liable  to  an  action  for  a  nuisance  in  discharging 
the  effluent  into  the  river  at  the  authorized  place.243  In  another 
case  it  appeared  that  by  direction  of  a  local  board  of  health  the 
sewage  of  a  town  had  been  by  means  of  drainage  conveyed  to  a 
river,  which  sewage,  not  having  been  completely  deodorized  before 
coming  in  contact  with  the  river,  had  so  polluted  the  stream  pass- 
ing the  plaintiff's  property  as  to  kill  the  fish  therein,  and  other- 
wise causing  a  nuisance;  it  was  held  that  the  plaintiff  was 
entitled  to  an  injunction  to  restrain  the  further  pollution  of  the 
water  passing  by  his  property.244  Under  another  decision  the  de- 
fendant diverted  a  stream  as  it  passed  through  his  premises,  but 
restored  it  undiminished,  as  to  the  quantity  of  water,  to  its  former 
channel  before  it  reached  the  premises  of  the  plaintiff;  the  de- 
fendant also  employed  the  stream,  while  on  his  premises,  in  a  way 
which  rendered  the  water  unfit  for  ordinary  use,  but  he  alleged 
that  the  water,  by  the  time  it  reached  the  plaintiff's  lands,  was 
freed  to  the  utmost  possible  extent  from  any  noxious  ingredients 
with  which  it  had  become  impregnated,  and  it  did  not  appear  that 
any  actual  damage  was  sustained  by  the  plaintiff.  Under  these 
circumstances  the  lord  chancellor  dissolved  an  injunction  which 
had  been  granted  by  the  vice-chancellor  restraining  the  defendant 

242.  Yorkshire  County  Council  v.  243.  Lea    Conservancy    Board    v. 

Holmfirth  Urban  Sanitary  Authority,  Hertford    Corporation,    1    Cav.   &   E. 

63  L.  J.   Q.  B.  485    (1894),   2  Q.  B.  299,  48  J.  P.  628. 

848,  9  R.  462,  71  L.  T.  217,  59  J.  P.  244.  Bidder     v.     Croydon     Local 

213,  C.  A.  Board,  6  L.  T.  778. 

392 


Waters.  §  299 

from  diverting  and  using  the  water.245  The  facts  in  another  case 
were  as  follows :  W.  occupied  bleaching  works  on  the  O.  B.  under 
a  lease.  The  improvement  commissioners  of  H.,  who  had 
adopted  the  local  government  act  and  thereby  were  constituted, 
the  local  board  of  health  for  H.  commenced  a  system  of  drainage 
for  H.  in  1862,  and  the  sewage  flowing  through  the  C.  stream 
into  the  O.  B.  polluted  its  waters  so  that  they  could  not  be 
used  for  bleaching  purposes.  In  1868  W.  filed  his  bill,  praying 
for  an  injunction  to  restrain  the  commissioners  from  permitting 
the  sewage  to  flow  into  the  O.  B.  The  suit  was  compromised, 
and  by  an  agreement,  dated  the  first  of  March,  1869,  the  com- 
missioners agreed  to  pay  W.  a  certain  sum  for  damages  and  that 
they  would  not,  after  the  thirty-first  of  that  month,  permit  the 
sewage  of  H.  to  flow  through  the  drains  under  their  control  into 
the  O.  B.  The  commissioners  adopted  the  irrigation  system  for 
the  disposal  of  their  sewage,  which  proved  wholly  inadequate. 
Sewage  flowed  down  the  C.  stream  into  the  0.  B.  and  also  the 
overflow  from  the  irrigation  farm.  W.  was  obliged  to  take  other 
bleaching  works  as  the  waters  of  the  O.  B.  were  so  polluted  by 
the  drainage  that  he  could  not  use  them.  He  therefore  filed  his 
bill  against  the  commissioners,  praying  for  an  injunction  in  the 
terms  of  the  agreement,  and  for  an  inquiry  as  to  damages  sus- 
tained by  him.  Relying  on  the  performance  of  the  agreement, 
W.  took  a  new  lease  of  the  bleaching  works.  It  was  held  that 
W.  was  entitled  to  an  injunction,  and  an  inquiry  as  to  damages 
as  prayed  by  his  bill.     Defendants  to  pay  costs.246 

§  299.  The  Chicago  drainage  case — Jurisdiction  of  federal 
courts — Controversies  between  States — State  and  federal  law — 
Power  of  Congress  to  regulate  commerce — Nuisance  of  a  char- 
acter not  discoverable  by  unassisted  senses. — A  very  recent  case 
in  the  Supreme  Court  of  the  United  States247  covers  the  points 
indicated  by  the  heading  of  this  section,  and  is  of  sufficient  impor- 
tance to  warrant  its  insertion  here  in  full.     The  facts  sufficiently 

245.  Elmhirst  v.  Spencer,  2  Mac.  247.  Missouri  v.  Illinois  (The  Chi 
&  G.  45.  cago  Drainage   Canal   Case),  200  U 

246.  Wood   v.   High   &   Low  Har-  S.  part  5. 
rowgate  Imp.  Co.,  22  W.  R.  763. 

393 


§  299  Waters. 

appear  in  the  opinion  which  is  as  follows:  "Holmes,  J. — This 
is  a  suit  brought  by  the  State  of  Missouri  to  restrain  the  discharge 
of  the  sewage  of  Chicago  through  an  artificial  channel  into  the 
Desplaines  river,  in  the  State  of  Illinois.  That  river  empties 
into  the  Illinois  river,  and  the  latter  empties  into  the  Mississippi 
at  a  point  about  forty-three  miles  above  the  city  of  St.  Louis.  It 
was  alleged  in  the  bill  that  the  result  of  the  threatened  discharge 
would  be  to  send  fifteen  hundred  tons  of  poisonous  filth  daily  into 
the  Mississippi,  to  deposit  great  quantities  of  the  same  upon 
the  part  of  the  bed  of  the  last-named  river  belonging  to  the  plain- 
tiff, and  so  to  poison  the  water  of  that  river,  upon  which  various  of 
the  plaintiff's  cities,  towns  and  inhabitants  depended,  as  to  make 
it  unfit  for  drinking,  agricultural  or  manufacturing  purposes.  It 
was  alleged  that  the  defendant  Sanitary  District  was  acting  in 
pursuance  of  a  statute  of  the  State  of  Illinois  and  as  an  agency 
of  that  State.  The  case  is  stated  at  length  in  180  U.  S.  2081, 
where  a  demurrer  to  the  bill  was  overruled.  A  supplemental  bill 
alleges  that  since  the  filing  of  the  original  bill  the  drainage  canal 
has  been  opened  and  put  into  operation  and  has  produced  and  is 
producing  all  the  evils  which  were  apprehended  when  the  injunc- 
tion was  first  asked.  The  answers  deny  the  plaintiff's  case,  allege 
that  the  new  plan  sends  the  water  of  the  Illinois  river  into  the 
Mississippi  much  purer  than  it  was  before,  that  many  towns  and 
cities  of  the  plaintiff  along  the  Missouri  and  Mississippi  discharge 
their  sewage  into  those  rivers,  and  that  if  there  is  any  trouble, 
the  plaintiff  must  look  nearer  home  for  the  cause.  The  decision 
upon  the  demurrer  discussed  mainly  the  jurisdiction  of  the  court, 
and,  as  leave  to  answer  was  given  when  the  demurrer  was  over- 
ruled, naturally  there  was  no  very  precise  consideration  of  the 
principles  of  law  to  be  applied  if  the  plaintiff  should  prove  its 
case.  That  was  left  to  the  future  with  the  general  intimation  that 
the  nuisance  must  be  made  out  upon  determinate  and  satisfactory 
evidence,  that  it  must  not  be  doubtful  and  that  the  danger  must 
be  shown  to  be  real  and  immediate.  The  nuisance  set  forth  in 
the  bill  was  one  which  would  be  of  international  importance — a 
visible  change  of  a  great'  river  from  a  pure  stream  into  a  polluted 
and  poisoned  ditch.  The  only  question  presented  was  whether 
as  between  the  States  of  the  Union,  this  court  was  competent  to 

394 


Waters.  §  299 

deal  with  a  situation  which,  if  it  arose  between  independent  sover- 
eignties, might  lead  to  war.    Whatever  differences  of  opinion  there 
might  be  upon  matters  of  detail,  the  jurisdiction  and  authority  of 
this  court  to  deal  with  such  a  case  as  that  is  now  open  to  doubt. 
But  the  evidence  now  is  in,  the  actual  facts  have  required  for  their 
establishment  the  most  ingenious  experiments,  and  for  their  inter- 
pretation,  the  most  subtle   speculations  of  modern  science,   and 
therefore  it  becomes  necessary  at  the  present  stage  to  consider 
somewhat   more  nicely   than  heretofore  how  the  evidence  is  to 
be  approached.     The  first  question  to  be  answered  was  put  in  the 
well  known  case  of  the  Wheeling  bridge.248     In  that  case,  also, 
there  was  a  bill  brought  by  a  State  to  restrain  a  public  nuisance, 
the  erection  of  a  bridge  alleged  to  obstruct  navigation,  and  a  sup- 
plemental bill  to  abate  it  after  it  was  erected.     The  question  was 
put  most  explicitly  by  the  dissenting  judges  but  it  was  accepted 
by  all  as  fundamental.     The  chief  justice  observed  that  if  the 
bridge  was  a  nuisance,  it  was  an  offence  against  the  sovereignty 
whose  laws  had  been  violated,  and  he  asked  what  sovereignty  that 
was.249     It  could  not  be  Virginia,  because  that  State  had  pur- 
ported to  authorize  it  by  statute.     The  chief  justice  found  no 
prohibition  by  the  United  States.250     No  third  source  of  law  was 
suggested  by  any  one.     The  majority  accepted  the  chief  justice's 
postulate,  and  found  an  answer  in  what  Congress  had  done.     It 
hardly  was  disputed  that  Congress  could  deal  with  the  matter 
under  its  power  to  regulate  commerce.     The  majority  observed 
that  although  Congress  had  not  declared  in  terms  that  a  State 
should  not  obstruct  the  navigation  of  the  Ohio  by  bridges,  yet  it 
had  regulated  navigation  upon  that  river  in  various  ways  and  had 
sanctioned   the   compact  between  Virginia   and   Kentucky  when 
Kentucky  was-  let  into  the  Union.     By  that  compact  the  use  and 
navigation  of  the  Ohio,  so  far  as  the  territory  of  either  State  lay 
therein,  was  to  be  free  and  common  to  the  citizens  of  the  United 
States.     The  compact,  by  the  sanction  of  Congress,  had  become  a 
law    of   the   Union.      A    State   law   which    violated    it   was    un- 

248.  Pennsylvania   v.   Wheeling  &  J..  13  How.    (U.  S.)    599.     See,  also, 

Belmont  Bridge  Co.,  13  How.   (U.  S.)  Kansas  v.   Colorado,   185  U.  S.   125. 

518  250.   13  How.   (U.  S.)   580. 

249.13  How.   (U.  S.)   561;  Daniel, 

395 


§  299  Waters. 

constitutional.  Obstructing  the  navigation  of  the  river 
was  said  to  violate  it,  and  it  was  added  that  more  was  not  neces- 
sary to  give  a  civil  remedy  for  an  injury  done  by  the  obstruction.251 
At  a  later  stage  of  the  case,  after  Congress  had  authorized  the 
bridge,  it  was  stated  again  in  so  many  words  that  the  ground  of 
the  former  decision  was  that  "  the  Act  of  the  Legislature  of 
Virginia  afforded  no  authority  or  justification.  It  was  in  conflict 
with  the  Acts  of  Congress,  which  were  the  paramount  law."  In 
the  case  at  bar,  whether  Congress  could  act  or  not,  there  is  no 
suggestion  that  it  has  forbidden  the  action  of  Illinois.  The  only 
ground  on  which  that  State's  conduct  can  be  called  in  question 
is  one  which  must  be  implied  from  the  words  of  the  Constitution. 
The  Constitution  extends  the  judicial  power  of  the  United  States 
to  controversies  between  two  or  more  States  and  between  a  State 
and  citizens  of  another  State,  and  gives  this  court  original  juris- 
diction in  cases  in  which  a  State  shall  be  a  party.  Therefore,  if 
one  State  raises  a  controversy  with  another,  this  court  must  deter- 
mine whether  there  is  any  principal  of  law,  and,  if  any,  what,  on 
which  the  plaintiff  can  recover.  But  the  fact  that  this  court  must, 
decide  does  not  mean,  of  course,  that  it  takes  the  place  of  a 
legislature.  Some  principles  it  must  have  power  to  declare.  For 
instance,  when  a  dispute  arises  about  boundaries,  this  court  must 
determine  the  line,  and  in  doing  so  must  be  governed  by  rules 
explicitly  or  implicitly  recognized.25'  It  must  follow  and  apply 
those  rules,  even  if  legislation  of  one  or  both  of  the  States  seems 
to  stand  in  the  way.  But  the  words  of  the  Constitution  would 
be  a  narrow  ground  upon  which  to  construct  and  apply  to  the 
relations  between  States  and  the  same  system  of  municipal  law 
in  all  its  details  which  would  be  applied  between  individuals.  If 
we  suppose  a  case  which  did  not  fall  within  the  power  of  Congress 
to  regulate,  the  result  of  a  declaration  of  rights  by  this  court 
would  be  the  establishment  of  a  rule  which  would  be  irrevocable 
by  any  power  except  that  of  this  court  to  reverse  its  own  decision, 
an  amendment  of  the  Constitution,  or  possibly  an  agreement  be- 
tween the  States  sanctioned  by  the  legislature  of  the  United  States. 

251.  13  How.   (U.  S.)  565,  566.  253.  Rhode    Island    v.    Massaehu- 

252.  18  How.    (U.  S.)   421,  429.  setts,  12  Pet,    (U.  S.)   657,  737. 

396 


Waters.  §  ^9 

The  difficulties  in  the  way  of  establishing  such  a  system  of  law 
might   not   be   insuperable,   but  they   would  be   great   and   new. 
Tale  the  question  of  prescription  in  a  case  like  the  present.     Ine 
reasons  on  which  prescription  for  a  public  nuisance  is  denied  or 
may  be  granted  to  an  individual  as  against  the  sovereign  power  to 
which  he  is  subject  have  no  application  to  an  independent  State. 
It   would  be   contradicting   a   fundamental   principle   of   human 
nature  to  allow  no  effect  to  the  lapse  of  time,  however  long. 
Yet  the  fixing  of  a  definite  time  usually  belongs  to  the  legislature 
rather  than  the  courts.     The  courts  did  fix  a  time  in  the  rule 
against  perpetuities,  but  the  usual  course,  as  in  the  instances  of 
statutes  of  limitations,  the  duration  of  patents,  the  age  of  majority 
etc.,  is  to  depend  upon  the  lawmaking  power.     It  is  decided  that 
a  case  such  as  is  made  by  the  bill  may  be  ground  for  relief.     The 
purpose  of  the  foregoing  observations  is  not  to  lay  a  foundation 
for  departing  from  that  decision,  but  simply  to  illustrate  the  great 
and  serious  caution  with  which  it  is  necessary  to  approach  the  ques- 
tion whether  a  case  is  proved.    It  may  be  imagined  that  a  nuisance 
might  be   created   by   a   State   upon   a   navigable   river  like  the 
Danube,  which  would  amount  to  a  casus  belli  for  a  State  lower 
down,  unless  removed.     If  such   a  nuisance  were  created  by  a 
State  upon  the  Mississippi,  the  controversy  would  be  resolved  by 
the  more  peaceful  means  of  a  suit  in  this  court.     But  it  does  not 
follow  that  every  matter  which  would  warrant  a  resort  to  equity 
by  one  citizen  against  another  in  the  same  jurisdiction  equally 
would  warrant  an  interference  by  this  court  with  the  action  oi 
a  State.     It  hardly  can  be  that  we  should  be  justified  in  declar- 
ing statutes  ordaining  such  action  void  in  every  instance  where 
the  Circuit  Court  might  intervene  in  a  private  suit,  upon  no  other 
ground  than  analogy  to  some  selected  system  of  municipal  law,  and 
the   fact  that   we   have   jurisdiction   over   controversies  between 
States     The  nearest  analogy  would  be  found  in  those  cases  which 
an  easement:  has  been  declared  in  favor  of  land  in  one  State  over 
land  in  another.    But  there  the  right  is  recognized  on  the  assump- 
tion of  a  concurrence  between  the  two  States,  the  one,  so  to  speak, 

254.  See    1    Oppenheim,    Interna-  255.  Davis  v.  Mills,  194  U.  S.  451, 

tional  Law,  293,  §§  242,  243.  457. 

397 


§  299  Waters. 

offering  the  right,  the  other  permitting  it  to  be  accepted.256  But 
when  the  State  itself  is  concerned  and  by  its  legislation  expressly 
repudiates,  the  right  set  up,  an  entirely  different  question  is  pre- 
sented. Before  this  court  ought  to  intervene  the  case  should  be 
of  serious  magnitude,  clearly  and  fully  proved,  and  the  principle 
to  be  applied  should  be  one  which  the  court  is  prepared  deliber- 
ately to  maintain  against  all  consderations  on  the  other  side.237  As 
to  the  principle  to  be  laid  down  the  caution  necessary  is  manifest. 
It  is  a  question  of  the  first  magnitude  whether  the  destiny  of 
the  great  rivers  is  to  be  the  sewers  of  the  cities  along  their  banks 
or  to  be  protected  against  everything  which  threatens  their  purity. 
To  decide  the  whole  matter  at  one  blow  by  an  irrevocable  fiat 
would  be  at  least  premature.  If  we  are  to  judge  by  what  the 
plaintiff  itself  permits,  the  discharge  of  sewage  into  the  Missis- 
sippi by  cities  and  towns  is  to  be  expected.  We  believe  that  the 
practice  of  discharging  into  the  river  is  general  along  its  banks, 
except  where  the  levees  of  Louisiana  have  led  to  a  different  course. 
The  argument  for  the  plaintiff  asserts  it  to  be  proper  within 
certain  limits.  These  are  facts  to  be  considered.  Even  in  cases 
between  individuals  some  consideration  is  given  to  the  practical 
course  of  events.  In  the  back  country  of  England  parties  would 
not  be  expected  to  stand  upon  extreme  right.208  Where,  as  here, 
the  plaintiff  has  sovereign  powers  and  deliberately  permits  dis- 
charges similar  to  those  of  which  it  complains,  it  not  only  offers  a 
standard  to  which  the  defendant  has  the  right  to  appeal,  but,  as 
some  of  those  discharges  are  above  the  intake  of  St.  Louis, 
it  warrants  the  defendant  in  demanding  the  strictest  proof  that 
the  plaintiff's  own  conduct  does  not  produce  the  result,  or  at  least 
so  conduce  to  it  that  the  courts  should  not  be  curious  to  apportion 
the  blame.  We  have  studied  the  plaintiff's  statement  of  the  facts 
in  detail  and  have  perused  the  evidence,  but  it  is  unnecessary  for 
the  purposes  of  decision  to  do  more  than  give  the  general  result 
in  a  very  simple  way.  At  the  outset  we  cannot  but  be  struck  by 
the  consideration  that  if  this  suit  had  been  brought  fifty  years 

256.  Manville  Co.  v.  Wooster,  38  258.  St.    Helen's    Smelting   Co.    v. 
Mass.  89.  Tipping,  11  H.  L.  C.  642.     See  Bos- 

257.  See  Kansas  v.  Colorado,  185  ton  Ferrule  Co.  v.   Hills,   159  Mass. 
U.  S.  125.  147.  150. 

398 


Waters.  §  299 

ago  it  almost  necessarily  would  have  failed.     There  is  no  pretense 
that  there  is  a  nuisance  of  the  simple  kind  that  was  known  to  the 
older  common  law.     There  is  nothing  which  can  be  detected  by 
the  unassisted  senses — no  visible  increase  of  filth,  no  new  smell. 
On  the  contrary,  it  is  proved  that  the  great  volume  of  pure  water 
from  Lake  Michigan  which,  is  mixed  with  the  sewage  at  the  start 
has  improved  the  Illinois  river  in  these  respects  to  a  noticeable 
extent.     Formerly  it  was  sluggish  and  ill  smelling.     Now  it  is  a 
comparatively  clear  stream  to  which  edible  fish  have  returned. 
Its  water  is  drunk  by  the  fishermen,  it  is  said  without  evil  results. 
The  plaintiff's  case  depends  upon  an  inference  of  the  unseen.     It 
draws  the  inference  from  two  propositions.     First,  that  typhoid 
fever  has  increased  considerably  since  the  change  and  that  other 
explanations  have  been  disproved,  and  second,  that  the  bacillus  of 
typhoid  can  and  does  survive  the  journey  and  reach  the  intake  of 
St.  Louis  in  the  Mississippi.    We  assume  the  now  prevailing  scien- 
tific explanation  of  typhoid  fever  to  be  correct.     But  when  we 
go  beyond  that  assumption  everything  is  involved  in  doubt.     The 
data  upon  which  an  increase  in  the  deaths  from  typhoid  fever- 
in  St.  Louis  is  alleged  are  disputed.     The  elimination  of  other 
causes  is  denied.     The  experts  differ  as  to  the  time  and  distance 
within  which  a  stream  would  purify  itself.     No  case  of  an  epi- 
demic caused  by  infection  at  so  remote  a  source  is  brought  forward 
and  the  cases  which  are  produced  are  controverted.     The  plaintiff 
obviously  must  be  cautious  upon  this  point,  for  if  this  suit  should 
succeed  many  others  would  follow,  and  it  not  improbably  would 
find  itself  a  defendant  to  a  bill  by  one  or  more  of  the  States 
lower  down  upon  the  Mississippi.     The  distance  which  the  sewage 
has  to  travel  (357  miles)  is  not  open  to  debate,  but  the  time  of 
transit  to  be  inferred  from  experiments  with  floats  is  estimated 
at  varying  from  eight  to  eighteen  and  a  half  days,  with  forty- 
eight  hours  more  from  intake  to  distribution,  and  when  corrected 
by  observations  of  bacteria  is  greatly  prolonged  by  the  defendants. 
The  experiments  of  the  defendants'  experts  lead  them  to  the  opin- 
ion that  a  typhoid  bacillus  could  not  survive  the  journey,  while 
those  on  the  other  side  maintain  that  it  might  live  and  keep  its 
power  for  twenty-five  days   or  more,   and  arrive   at  St.   Louis. 
Upon  the   question   at   issue,    whether   the   new   discharge  from 

399 


§  299  Waters. 

Chicago  hurts  St.  Louis,  there  is  a  categorical  contradiction  be- 
tween the  experts  on  the  two  sides. 

The  Chicago  drainage  canal  was  opened  on  January  17,  1900. 
The  deaths  from  typhoid  fever  in  St.  Louis,  before  and  after  that 
date,  are  stated  somewhat  differently  in  different  places.  We 
give  them  mainly  from  the  plaintiff's  brief:  1890,  140;  1891, 
165;  1892,  441;  1893,  215;  1894,  171;  1895,  106;  1896,  106; 
1897,  125;  1898,  95;  1899,  131;  1900,  154;  1901,  181;  1902, 
216 ;  1903,  281.  It  is  argued  for  the  defendant  that  the  numbers 
for  the  later  years  have  been  enlarged  by  carrying  over  cases 
which  in  earlier  years  would  have  been  put  into  a  miscellaneous 
column  (intermittent,  remittent,  typho-malaria,  etc.,  etc.),  but  we 
assume  that  the  increase  is  real.  Nevertheless,  comparing  the 
last  four  years  with  the  earlier  ones,  it  is  obvious  that  the  ground 
for  a  specific  inference  is  very  narrow,  if  we  stopped  at  this  point. 
The  plaintiff  argues  that  the  increase  must  be  due  to  Chicago, 
since  there  is  nothing  corresponding  to  it  in  the  watersheds  of  the 
Missouri  or  Mississippi.  On  the  other  hand,  the  defendant  points 
out  that  there  has  been  no  such  enhanced  rate  of  typhoid  on  the 
banks  of  the  Illinois  as  would  have  been  found  if  the  opening  of 
the  drainage  canal  were  the  true  cause. 

Both  sides  agree  that  the  detection  of  the  typhoid  bacillus  in 
the  water  is  not  to  be  expected.     But  the  plaintiff  relies  upon 
proof  that  such  bacilli  are  discharged  into  the  Chicago  sewage  in 
considerable  quantities ;  that  the  number  of  bacilli  in  the  water  of 
the  Illinois  is  much  increased,  including  the  Bacillus  coli  com- 
munis, which  is  admitted  to  be  an  index  of  contamination,  and 
that  the  chemical  analyses'  lead  to  the  same  inference.     To  prove 
that  the  typhoid  bacillus  could  make  the  journey  an  experiment 
was  tried  with  the  bacillus  prodigiosus,  which  seems  to  have  been 
unknown,  or  nearly  unknown,  in  these  waters.     After  preliminary 
trials,  in  which  these  bacilli  emptied  into  the  Mississippi  near  the 
mouth  of  the  Illinois'  were  found  near  the  St.  Louis  intake  and  in 
St.  Louis  in  times  varying  from  three  days  to  a  month,  one  hun- 
dred and  seven  barrels  of  the  same,  said  to  contain  one  thousand 
million  bacilli  to  the  cubic  centimeter,  were  put  into  the  drainage 
canal  near  the  starting  point  on  November  6,  and  on  December  4 
an  example  was  found  at  the  St.  Louis  intake  tower.     Four  others 

400 


Waters.  §299 

were  found  on  the  three  following  days,  two  at  the  tower  and  two 
at  the  mouth  of  the  Illinois.  As  this  bacillus  is  asserted  to  have 
about  the  same  length  of  life  in  sunlight  in  living  waters  as  the 
bacillus  typhosus,  although  it  is  a  little  more  hardy,  the  experi- 
ment is  thought  to  prove  one  element  of  the  plaintiff's  case,  al- 
though the  very  small  number  found  in  many  samples  of  water  is 
thought  by  the  other  side  to  indicate  that  practically  no  typhoid 
germs 'would  get  through.  It  seems  to  be  conceded  that  the  purifi- 
cation of  the  Illinois  by  the  large  dilution  from  Lake  Michigan 
(nine  parts  or  more  in  ten)  would  increase  the  danger,  as  it  now 
generally  is  believed  that  the  bacteria  of  decay,  the  saprophytes, 
which  flourish  in  stagnant  pools,  destroy  the  pathogenic  germs. 
Of  course  the  addition  of  so  much  water  to  the  Illinois  also  in- 
creases its  speed. 

On  the  other  hand,  the  defendant's  evidence  shows  a  reduction  in 
the  chemical  and  bacterial  accompaniments  of  pollution  in  a  given 
quantity  of  water,  which  would  be  natural  in  view  of  the  mixture 
of  nine  parts  to  one  from  Lake  Michigan.  It  affirms  that  the  Illi- 
nois is  better  or  no  worse  at  its  mouth  than  it  was  before,  and 
makes  it  at  least  uncertain  how  much  of  the  present  pollution  is 
due  to  Chicago  and  how  much  to  sources  further  down,  not 
complained  of  in  the  bill.  It  contends  that  if  any  bacilli  should 
get  through  they  would  be  scattered  and  enfeebled  and  would  do 
no  harm.  The  defendant  also  sets  against  the  experiment  with 
the  bacillus  prodigiosus  a  no  less  striking  experiment  with  typhoid 
germs  suspended  in  the  Illinois  river  in  permeable  sacs.  Accord- 
ing to  this  the  duration  of  the  life  of  these  germs  has  been  much 
exaggerated,  and  in  that  water  would  not  be  more  than  three 
or  four  days.  It  is  suggested,  by  way  of  criticism,  that  the  germs 
may  not  have  been  of  normal  strength,  that  the  conditions  were 
less  favorable  than  if  they  had  floated  down  in  a  comparatively 
unchanging  body  of  water,  and  that  the  germs  may  have  escaped, 
but  the  experiment  raises  at  least  a  serious  doubt.  Further,  it 
hardly  is  denied  that  there  is  no  parallelism  in  detail  between  the 
increase  and  decrease  of  typhoid  fever  in  Chicago  and  St.  Louis. 
The  defendant's  experts  maintain  that  the  water  of  the  Missouri 
is  worse  than  that  of  the  Illinois,  while  it  contributes  a  much  lar- 
ger proportion  to  the  intake.     The  evidence  is  very  strong  that 

401 


I  300  Waters. 

it  is  necessary  for  St.  Louis  to  take  preventive  measures,  by 
filtration  or  otherwise,  against  the  dangers  of  the  plaintiff's  own 
creation  or  from  other  sources  than  Illinois.  What  will  protect 
against  one  will  protect  against  another.  The  presence  of  causes 
of  infection  from  the  plaintiff's  action  makes  the  case  weaker  in 
principle  as  well  as  harder  to  prove  than  one  in  which  all  came 
from  a  single  source. 

Some  stress  was  laid  on  the  proposition  that  Chicago  is  not  on 
the  natural  watershed  of  the  Mississippi,  because  of  a  rise  of  a  few 
feet  between  the  Desplaines  and  the  Chicago  rivers.  We  perceive 
no  reason  for  a  distinction  on  this  ground.  The  natural  features  re- 
lied upon  are  of  the  smallest.  And  if  under  any  circumstances  they 
could  affect  the  case,  it  is  enough  to  say  that  Illinois  brought 
Chicago  into  the  Mississippi  watershed  in  pursuance  not  only  of  its 
own  statutes,  but  also  of  the  Acts  of  Congress,259  the  validity  of 
which  is  not  disputed.260  Of  course  these  acts  do  not  grant  the 
right  to  discharge  sewage,  but  the  case  stands  no  differently  in 
point  of  law  from  a  suit  because  of  the  discharge  from  Peoria 
into  the  Illinois,  or  from  any  other  or  all  the  other  cities  on  the 
banks  of  that  stream.  We  might  go  more  into  detail,  but  we  be- 
lieve that  we  have  said  enough  to  explain  our  point  of  view  and 
our  opinion  of  the  evidence  as  it  stands.  What  the  future  may 
develop  of  course  we  cannot  tell.  But  our  conclusion  upon  the 
present  evidence  is  that  the  case  proved  falls  so  far  below  the  alle- 
gations of  the  bill  that  it  is  not  brought  within  the  principles 
heretofore  established  in  the  cause.  Bill  dismissed  without  preju- 
dice." 

§  300.  Sewage — Overtaxing  capacity  of  sewer  or  stream. — 
Overflow. — If  a  city  having  constructed  a  sewer,  connects  it 
with  other  sewers  and  drains,  overtaxing  its  capacity,  allowing 
insoluble  materials  to  accumulate  in  it  and  obstruct  the  flow  of 
the  water,  causing  it  to  flow  back  upon  private  property,  its  lia- 
bility for  the  resulting  damage  does  not  differ  from  that  of  an 
individual  who  so  unreasonably  manages  his  property  as  to  injure 

259.  Acts    of   Congress    of    March  260.  Wisconsin  v.    Duluth,   96   U. 

30,  1822,  c.  14,  3  St.  659,  and  March       S.   379. 
2,  1827,  c.  51,  4  St.  234. 

402 


Waters.  §§  301,  302 

his  neighbor.  The  fact  that  it  is  a  public  corporation  Joes  uot 
relieve  it  from  liability  in  performing  a  work  not  imposed 
upon  it  as  a  public  agent  but  voluntarily  assumed  under  a  legisla- 
tive license.261  So,  in  cass  sewage  equal  in  amount  to  the  volume  of 
the  stream  of  water  is  daily  turned  into  it,  and  disease  has  broken 
out  it  constitutes  a  nuisance  whether  the  water  is  navigable  or 
not,  and  it  will  be  interfered  with  by  the  courts.262 

§  301.  Sewage — Liability  of  occupants  or  owners  of  houses 
in  district. — Where  a  nuisance  is  caused  by  certain  houses  in  a 
certain  parish  or  district  emptying  their  ces's pools  by  connecting 
pipes  into  certain  main  pipes  which  pass  along  the  road  of  such 
district,  which  pipes  are  ultimately  connected  with  and  discharge 
the  sewage  into  certain  brooks  which  flow  into  plaintiff's  district 
and  thus  cause  a  nuisance,  the  plaintiffs*  would  have  a  remedy  as 
against  the  persons  actively  committing  it ;  that  is,  against  the  oc- 
cupants or  owners  of  the  houses  whose  sewage  is  turned  into  the 
brooks  in  the  manner  stated.263 

§  302.  Sewage  discharged  into  street. — Maintaining  issues  or 
outlets  from  the  privies  and  cesspools  of  a  large  factory  into  public 
gutters  of  a  city  whereby  large  quantities  of  dangerous  matter 
flows  into  such  gutters  to  the  peril  of  public  health  constitutes  a 
nuisance,  even  though  such  acts  are  prohibited  by  city  ordi- 
nance.264 If  a  nuisance  is  alleged  to  be  caused  by  disagreeable 
odors  along  a  city  street  arising  from  the  flow  of  impure  water 
from  a  brewery  in  the  same  city  and  such  impure  water  flows 
in  front  of  plaintiff's  residence  and  impairs  the  enjoyment  of  his 

261.  Roberts   v.    Dover,    72   N.   H.  262.  Atty.-Genl.     v.     Metropolitan 

147,  153,  55  Atl.  895.     An  action  on  Board  of  Works,  11  W.  R.  820,  2  N. 

the   case   for   negligently   overflowing  R.  312,  9  L.  T.  139,  1  H.  &  M.  298. 

cellar  of  plaintiff's  store.  263.  Atty.-General   v.    Clerkenwell 

Non-liability    of    municipality  Vestry,  60   L.  J.  Ch.   788    (1891),   3 

for  non-provision  against  floods  Ch.  527,  65  L.  T.  312,  40  W.  R.  185, 

in   stream  which  it  has  converted  to  per  Romer,  J. 

its   use   by  emptying  sewer   therein;  264.  Board    of    Health    v.    Cotton 

see   O'Donnell    v.    City    of    Syracuse,  Mills,  46  La.  Ann.  806,  15  So.  164. 
184  N.  Y.  1   (advance  sheets  No.  270, 
March     3,     1906),     revg.     102     App. 
Div.  80. 

403 


§  303  Waters. 

property,  and  a  proper  ca&e  is  made,  the  nuisance  may  be  abated 
or  enjoined,  and  damages  recovered  where  the  statute  provides 
for  an  action  in  favor  of  any  person  whose  property  is  injuriously 
affected,  or  whose  personal  enjoyment  is  lessened  by  the 
nuisance.265  Again,  the  fact  that  the  mouth  of  the  sewer  is  lower 
than  the  surface  of  the  highway  is  not  material  in  determining 
whether  such  sewer  terminating  thereon  is  a  nuisance,266  and  it 
constitutes  no  excuse  for  casting  sewage  into  a  street  that  there  is 
no  public  sewer  where  other  means  of  disposal  exist.267 

§  303.  Pollution  of  waters — Manufacturing  processes. — A 
rule  recognizing  the  right  of  a  city  located  on  the  banks  of  a 
stream  to  discharge  its  sewage  therein,  or  of  a  landowner  in  devel- 
oping and  utilizing  the  natural  resources  of  his  land  to  discharge 
water  therefrom,  which  by  its  natural  flowage  finds  its  way  to 
lower  lands  or  into  streams,  does  not  apply  to  a  company  engaged 
in  the  manufacture  of  articles  of  commerce  for  its  own  profit, 
which  might  be  operated  elsewhere  less  injuriously  to  the  rights 
of  others,  in  bringing  to  its  factory  material  from  which,  by 
artificial  means,  it  evolves  putrescent,  deleterious,  and  other  waste 
matter  which  it  discharges'  into  a  stream.268  So  the  discharging  of 
refuse  and  polluted  matter  into  a  stream  constitutes  a  statutory 
nuisance  where  its  use  for  domestic  purposes  and  for  watering- 
stock  is  taken  away,  and  this  is  true  as  to  deposits  of  such  refuse 
matter  upon  plaintiff's  land  at  high  water  which  endangers  health 
and  renders  plaintiff's  home  almost  uninhabitable.269  And  deposits 
in  a  stream,  of  coloring  matter  used  in  manufacturing,  may  be 
enjoined  when  it  renders  the  water  unfit  for  culinary  or  domestic 
purposes.270  So  where  a  manufacturing  establishment  in  its  opera- 
tions discharges  large  quantities  of  deleterious  substances,  thereby 

265.  Smith  v.  Fitzgerald,  24  Ind.  Pope,  155  Ind.  394,  56  L.  R.  A.  899, 
316.  57  N.  E.  719. 

266.  Dierks  v.  Addison  Tup.  High-  269.  Western  Paper  Co.  v.  Corn- 
way  Comm'rs,  142  111.  197.  31  N.  E.  stock  (Ind.),  58  N.  E.  79; 
496.  Burns'     Rev.     Stat.     1894,     §§     290, 

267.  Kirkwood  v.  Cairns,  44  Mo.  2169;  Horner's  Rev.  Stat.  1897,  §§ 
App.   88.  289    2075. 

268.  The    Weston    Paper    Co.     v.  270.  Townsend  v.    Bell,   59   N.   Y. 

Supp.   203,  42  App.  Div.   409. 

404 


Wateks.  §  303 

polluting  a  stream  and  destroying  the  fish,  and  such  injurious  sub- 
stances intermingle  with  the  waters  and  are  deposited  upon  an- 
other's land  adjoining  the  river  and  render  it  less  available  for 
purposes  of  agriculture,  for  stock  raising  and  as  a  place  of  resi- 
dence, such  act  constitutes  a  public  nuisance.271  And  the  pollution 
and  vapors  of  a  creek  causad  by  offal  from  a  distillery  in  which 
hogs  are  kept  constitutes  a  nuisance.272  So,  turning  the  offal  from  a 
slaughter  house  into  the  waters  of  a  creek  polluting  them  so  they 
are  unfit  for  domestic  use  and  unfit  for  cattle,  and  causing  odors 
therefrom  which  are  injurious  to  health  constitutes  a  public 
nuisance  for  which  one  specially  injured  may  maintain  an 
action.273  And  the  deposit  of  refuse  from  a  creamery  into  the  bed 
of  a  stream  flowing  through  plaintiff's  land  and  near  his  buildings, 
polluting  the  water,  and  giving  off  noxious  gases  affecting  the 
use  and  enjoyment  of  plaintiff's  property  is  a  nuisanos;  but  it 
may  be  so  voluntarily  abated  as  not  to  constitute  a  nuisance.274 
So  the  adulteration  of  river  waters  by  gas  works  permitting  offen- 
sive and  noxious  matter  to  enter  such  waters  to  the  injury  of 
another  manufacturer  constitutes  a  ground  of  action.275  So  where 
acids  and  refuse  from  a  dynamite  factory  pollutes  a  stream  and 
destroys  its  use  for  domestic  purposes  and  for  cattle  it  will  be 
restrained.276  And  one  whose  business  is  hiring  and  housing 
pleasure  boats  and  who  owns  a  boat  house  and  floating  wharf 
is  entitled  to  a  remedy  for  injury  sustained  in  his  business  by 
reason  of  unauthorized  deposits  of  sawdust  from  mills,  which 
interferes  with  the  purity  and  flow  of  the  river.277  Again  in  an 
action  by  mill-owners,  riparian  proprietors,  to  restrain  the  dis- 
charge of  water  containing  acid  into  a  stream,  where  the  defendant 
asked  that  damages,  in  lieu  of  an  injunction,  might  be  given,  an 
injunction  was  granted.278    If  the  water  of  a  stream  is  in  fact  pol- 

271.  West  Muncie  Strawboard  Co.  275.  Carhart  v.   Auburn   Gaslight 
v.  Slack  (Ind.,  1904),  72  N.  E.  879;       Co.,  22  Barb.    (N.  Y.)    297. 

Burns'  Ann.  Stat.  1901,  §  2154.  276.  Rarick  v.   Smith.   17  Pa.  Co. 

272.  Smith  v.  McConathy,  11  Mo.       Ct.  627,  5  Pa.  Dist.  R.  530. 

517.  277.  Booth  v.   Rutte    (P.   C),   L. 

273.  Bowen    v.    Wendt,    103    Cal.       R.  15  App.  Cas.   188. 

236,  37  Pac.  49.  278.  Pennington    v.    Brinsop   Hall 

274.  Perry  v.    Howe   Co-operative       Coal  Co.,  46  L.  J.  Ch.  773,  5  Ch.  D. 
Creamery  Co.,  125  Iowa,  415,  101  N.       769,  37  L.  T.  149,  25  W.  R.  874. 

W.  150. 

405 


§  303  Waters. 

luted  by  refuse  matter  from  a  factory  it  can  make  no  difference 
whether  such  matter  is  directly  discharged  into  the  stream  or 
reaches  there  through  different  courses,  each  forming  a  connecting 
link  between  the  factory  and  the  polluted  stream.279  But  it  is  a 
question  of  fact  whether  or  not  a  discharge  of  sewerage  from  a  glu- 
cose factory  pollutes  a  river.280  It  is  held  in  a  New  Jersey  case 
that  notice  by  plaintiff  that  the  pollution  of  a  stream  used  by 
him  for  domestic  purposes  will  be  opposed,  given  to  a  bleaching 
company  before  their  establishment,  and  opposition  also  by  him 
to  their  incorporation  on  the  ground  of  consequent  injury  to  such 
use  with  the  result  that  a  charter  provision  is  made  prohibiting 
such  injury,  are  facts  of  force  for  the  interposition  of  a  court  of 
equity  although  such  facts  do  not  affect  the  parties'  legal  rights.281 
In  an  English  case  wThere  an  owner  of  land  complained  that  a 
bleaching  manufactory  rendered  the  wafer  which  passed  through 
his  grounds  impure,  it  was  held  that  he  must  prove  that  he  sus- 
tained some  substantial  damages;  it  was  not  sufficient  to  show 
that  the  water  did  not  come  out  of  the  defendant's  grounds  in 
as  pure  a  state  as  when  it  entered.  And  where  there  were  two 
streams,  one  passing  through  the  defendants'  grounds  to  their 
bleaching  factory,  the  other,  after  it  had  received  the  water  from 
the  factory,  passed  through  the  plaintiff's  land,  an  injunction  which 
restrained  the  defendants  from  using  both  streams  was,  on  that 
ground  alone,  untenable.282  In  another  English  case,  it  is  held 
that  the  right  of  mill  owners  to  impound  river  water  in  reservoirs 
for  the  purpose  of  trade,  preserved  to  them  by  the  English  rivers 
Pollution  Prevention  Act  of  1876,  sec.  17,  carries  with  it  the  right 
to  return  the  water  into  the  river,  notwithstanding  vegetable  mat- 
ter, refuse  of  other  mills  higher  up  the  river,  with  which  the  im- 
pounded water  is  charged,  because  putrid  in  the  reservoir,  and 

279.  United  States  Board  &  Paper  280.  State  v.  Glucose  Sugar  Re- 
Co.  v.  Moore  (Ind.  App.,  1904),  72  fining  Co.,  117  Iowa,  524,  91  N.  W. 
N.   E.    4S7.     In   this   case  the   refuse  794. 

matter    was    formerly    directly    dis-  281.  Holsman   v.    Boiling    Springs 

charged   into   the    stream,   but   after-  Bleaching  Co.,  14  N.  J.  Eq.  335. 

wards,   by   reason   of   an   accident,   it  282.  Elmshirst  v.  Spencer,  2  Mac. 

reached    the    river    through    an    open  &  G.  45. 
ditch,   a  flume,  a   reservoir    a   bayou 
an  I  mill  race. 

406 


Waters. 


o\Jo 


is  in  that  condition  returned  to  the  river.  To  create  an  offense 
under  sec.  2  of  putting  putrid,  solid  matter  into  a  river  the  effluent 
discharged  from  the  reservoir  must  contain  matter  hoth  putrid, 
that  is,  of  a  nature  to  pollute  the  stream,  and  solid  within  the  defi- 
nition of  see.  20  and  not  merely  solid  particles  in  suspension.283 


283.  Joint  Committee  of  River 
Ribble  v.  Halliwell  (1899),  1  Q.  B. 
27,  68  L.  J.  Q.  B.  N.  S.  20. 

284.  Mississippi  Mills  Co.  v. 
Smith,  69  Miss.  299,  30  Am.  Dec. 
546.  In  this  case  the  court  said: 
"  In  support  of  the  proposition  that 
the  plaintiffs  cannot  recover  in  this 
suit  because  the  water  was  polluted 
by  a  manufacturing  company,  and 
that  the  right  of  the  plaintiffs  must 
therefore  be  determined  by  a  differ- 
ent rule  than  would  be  applied  if  the 
injury  had  been  done  by  one  not  a 
manufacturer,  the  defendant  relies 
upon  the  case  of  Pennsylvania  Coal 
Co.  v.  Sanderson,  113  Pa.  St.  126, 
57  Am.  Rep.  445.  That  case  had  been 
before  the  Supreme  Court  of  Pennsyl- 
vania on  three  previous  writs  of 
error,  in  each  of  which  it  had  been 
determined  that  the  plaintiff  showed 
a  right  of  recovery.  86  Pa.  St.  401, 
27  Am.  Rep.  711,  94  Pa.  St.  302,  39 
Am.  Rep.  785,  102  Pa.  St.  370.  On 
the  fourth  writ  of  error,  and  upon 
substantially  the  same  facts,  a  con- 
trary conclusion  was  reached.  But 
the  decision  on  the  last  writ  of  error 
is,  not  that  a  manufacturing  com- 
pany, more  than  any  other  person, 
may  pollute  the  waters  of  a  stream, 
without  liability  to  others  having  a 
right  to  the  use  of  the  water  flowing 
therein.  On  the  contrary,  the  opin- 
ion is  based  upon  the  express  declara- 
tion of  the  court  that  the  character 
of  the  water  had   not  been  changed. 


The  action  was  by  Sanderson  against 
the  coal  company  for  polluting  the 
waters  of  Meadow  Brook  by  dis- 
charging therein  the  waters  from  its 
mine.  The  court  said :  '  It  will  be 
observed  that  the  defendants  have 
done  nothing  to  change  the  character 
of  the  water  or  its  purity,  save  what 
results  from  the  natural  use  and  en- 
joyment of  their  own  property.  They 
have  brought  nothing  on  the  land  ar- 
tificially. The  water,  as  it  poured 
into  Meadow  Brook,  is  the  water 
which  the  mine  naturally  discharges. 
Its  impurity  arises  from  natural,  not 
artificial,  causes.  The  mine  cannot, 
of  course,  be  operated  elsewhere  than 
where  the  coal  is  naturally  found, 
and  the  discharge  is  a  necessary  in- 
cident to  the  mining  of  it.'  The  dis- 
tinction between  that  case  and  this 
is  apparent.  In  that  the  mining  com- 
pany, in  the  ordinary  use  of  its  prop- 
erty, opened  up  a  flood  of  water 
which,  in  its  natural  state,  flowed 
into  the  brook,  and,  being  naturally 
injurious,  polluted  the  brook.  In 
this  case  the  defendant  company, 
using  water  in  which  it  had  a  lim- 
ited right,  and  to  which  the  plain- 
tiffs, after  a  reasonable  use  thereof 
by  the  defendant,  had  an  equal  right, 
by  artificial  means  changed  the  very 
nature  and  character  of  the  water, 
and  instead  of  permitting  it  to  flow 
to  the  plaintiffs  in  beneficial  condi- 
tion, poured  it  upon  them,  according 
to  their  witnesses,  poisoned  and  pu- 


407 


s  303  Waters. 

A  distinction  is  also  made  in  a  Mississippi  case  between  pollution 
of  a  stream  by  a  manufacturing  company,  that  is  by  artificial 
means,  and  one  where  the  impurity  arises  from  natural  causes, 
holding  that  such  a  company  has  no  more  right  than  any  other 
person  to  pollute  by  artificial  means  such  waters.284 

trescent.     For  this  a  right  of  recov-  of  the  jury  settles  that  claim  against 

ery  manifestly  existed,  unless  the  de-  it."       Mississippi  Mills   Company  v. 

fendant    had    acquired   the    right   by  Smith,  69  Miss.  299,  30  Am.  St.  Rep. 

prescription   so   to  do.    The   verdict  546,  549,  550. 


40S 


CHAPTER  XIV. 

Waters — Continued. 

Section  304.  Polluting  water  supply  of  city. 

305.  Ponds,  pools,  stagnant  waters. 

306.  Drains,   ditches,   channels,   canals,   etc.,— Diversion   of  water.— 

Pollution.— Damages. 

307.  Same   subject   continued. 

308.  Legislature  may  act  through  own  agencies.— Creation  of  sewer- 

age district.— Independent  source  of  pollution.— When  nuisance 
does  and  does  not  exist. 

309.  Expert  or  scientific  evidence  as  to  pollution  and  effect  thereof. 

310.  Character  of  odors,  proportion  and  effect  of  discharge.— Degree, 

nature  and  character  of  pollution  generally. 

311.  Pollution  of  waters. — General  decisions. 

312.  Diversion  or  obstruction  of  waters.— Generally. 

313.  Overflowing,   flooding  or  casting  water  upon  land.— Generally. 

314.  Percolations. — Subterranean  waters. 

315.  Surface  waters. 

316.  Surface  waters. — Instances. 

317.  Artificial  erections.— Embankments,  etc.— Rail  road  erections. 

318.  Mills,  mill  races  and  streams,  mill-sites  and  mill  owners.— Re- 

building mills. 

319.  Dams. 

320.  Dams  continued. 

321.  Dams  continued. — Back  water. 

322.  Dams  continued. — •Overflow,  flooding. 

323.  Dams  continued.— Overflow  and  flooding. — Evidence. 

324.  Increasing  height  of  dam.— Whether  flash-boards  part  of  dam. 

325.  Construction  of  dam  by  municipality. 

326.  Dams. — Navigable  waters. 

327.  Restoration  of  dams. — Parol  license. 

328.  Prescription. 

329.  Damages. 

§  304.  Polluting  water  supply  of  city. — Where  a  city  is  fully 
empowered  to  purchase  land  along  or  over  which  a  stream  flow:. 
and  is  fully  authorized  to  erect  a  dam  and  make  a  lake  to  feed  by 
means  of  an  artificial  conduit  or  tunnel,  a  city  reservoir  to  supply 

409 


§  304  Waters — Continued. 

its  inhabitants  with  pure  water  for  drinking  and  other  necessary 
purposes,  such  city  is  a  riparian  proprietor  in  the  strictest  sense 
in  respect  to  the  property  purchased  and  held  by  it  on  the  stream 
in  question  including  the  riparian  rights  of  which  the  party  under 
whom  it  claims  was  possessed  at  the  time  of  purchase,  unless 
derogated  by  grant  or  by  user  ripened  into  prescription.  Among 
these  rights  is  included  that  of  having  the  stream  flow  into  and 
through  the  lake  or  reservoir  in  its  ordinary  purity  and  quantity, 
without  any  unnecessary  or  unreasonable  diminution  or  pollution 
of  the  same  by  the  proprietors  above.  Therefore,  where  upper 
riparian  proprietors,  being  entitled  to  the  ordinary  use  of  water, 
including  the  right  to  apply  it  in  a  reasonable  way  to  purposes'  of 
trade  and  manufacture,  use  the  water  of  the  stream  in  an  unrea- 
sonable manner,  and  defile  the  same  in  such  a  manner  and  to 
such  an  extent  as  to  operate  an  actual  invasion  of  the  rights  of 
such  city,  the  latter  is  clearly  entitled  to  redress  by  action  at  law, 
and,  in  case  the  nuisance  be  continued,  to  summary  relief  by 
injunction.1  So  pigsty s,  slaughterhouses,  stables,  privies,  barn- 
yards, drains  or  other  objectionable  places  which  are  so  situated 
as  to  pollute  a  city's  water  supply  are  nuisances  which  may  be 

1.  Mayor  &  City  Council  of  Balti-  impure  and  unfit  for  use  for  the  silk 

more  v.  Warren  Mfg.  Co.,  59  Md.  96,  dyeing    trade)  ;   Pennington   v.    Brin- 

107,    108.     The  court,  per  Alvey,  J.,  sop  Hall    Coal   Co.,   5   Ch.  Div.   769. 

in  support  of  the  above  propositions  46  L.  J.   Ch.  773,  25  W.  R.  874,  37 

and    as    clearly    settling    them,    cites  L.  T.  149   (a  case  of  injunction  to  re- 

Swindon  Waterworks  Co.  v.  Wilts  &  strain  discharge  of  water  containing 

Berks  Canal  Co.,  L.  R.  7  H.  L.  697.  acid  into  a   stream,  also   a  question 

45  L.  J.  Ch.  638,  24  W.  R.  284,  33  L.  of    prescriptive    right    and    of    dam- 

T.    513    (which   holds   that   as    to   a  ages)  ;    Goldsmid  v.  Tunbridge  Wells 

corporation   acquiring   riparian  lands  Imp.   Comm.,  L.   R.   1    Ch.  App.   349, 

under  parliamentary  powers  all  sub-  14  L.  T.  154,  35  L.  J.  Ch.  382,  14  W. 

sisting  riparian  rights,  ordinary  and  R.    562,   12   Jur.   N.   S.   308    (a   case 

prescriptive,   attach,    including   those  of    prescriptive    right,     pollution    of 

necessaiy    for    corporate    purposes)  ;  stream    and    injunction)  ;    Baxendale 

Clowes      v.      Staffordshire      Potteries  v.  McMurray,  L.  R.  2  Ch.  App.   790, 

Waterworks   Co.,   L.   R.    8    Ch.    App.  16  W.   R.   32    (a   case  of   an  ancient 

125,  42  L.  J.  Ch.  107,  27  L.  T..  521,  paper  mill  and  pollution  of  stream)  ; 

21     W.     R.     32     (where    there    was  Sanderson  v.   Penn.   Coal  Co.,  86  Pa. 

nothing    in   the    statute    of   a    water-  St.   401;   Chipman   v.   Palmer,   77   N. 

works  company  which  gave  it  the  Y.  51;  Woodyear  v.  Shafer,  57  Md.  1. 
right  to  foul  the  river  and  make  it 

410 


Waters — Continued.  §  305 

abated  or  be  otherwise  relieved  against,2  and  the  water  supply  may 
be  so  far  polluted  at  the  point,  where  the  cause  of  the  pollution 
comes  into  the  stream  as  to  warrant  an  injunction  at  the  instance 
of  a  State  board  of  health,  even  though  there  is  no  pollution  at 
the  point  where  the  city  water  supply  is  obtained.3  Where,  how- 
ever, the  court  found  that  the  acts  of  defendant  in  conducting  its 
dairy  business  as  it  was  conducted  resulted  in  a  pollution  of  the 
waters  of  a  creek  at  the  point  where  the  dairy  was  situated ;  and 
further  found  that  if  the  acts  of  defendant  were  continued  then 
the  drainage  "may  pollute  the  waters"  of  a  certain  reservoir, 
such  findings  do  not  bring  the  acts  within  the  definition  of  a 
nuisance.4  And  a  mere  tendency  to  pollute  the  waters  of  a  lake 
caused  by  the  use  of  it  fcr  bathing  purposes  by  a  riparian  owner 
is  not  a  nuisance,  though  such  lake  is  a  source  of  water  supply.5 
A  legislative  enactment  is  constitutional  which  limits  the  dis- 
tance from  a  water  supply  within  which  a  sewer  may  be  emptied 
into  a  stream.6  And  it  constitutes  an  exercise  of  one  of  the  ordi- 
nary functions  of  the  police  power  of  a  State  to  abate  such  a 
nuisance  as  pollution  of  the  source  of  a  city's  water  supply.7  And 
where  exclusive  jurisdiction  is  not  conferred  on  a  State  board  of 
health  as  to  supervision  over  the  sources  of  a  water  supply  a 
town  board  of  health  acting  under  statutory  power  may  abate  a 
nuisance  which  pollutes  such  sources  of  water  supply.8 

§  305.  Ponds,  pools,  stagnant  waters.) — A  pond  is  not  a 
nuisance  per  se.9  But  if  it  should  appear  that  a  mill-pond  within  a 

2.  City  of  Durango  v.  Chapman,  156,  91  X.  W.  211,  9  Det.  Leg.  N. 
27  Colo.  169,  60  Pac.  635   (under  city       257. 

ordinance)  ;      Kelley  v.  Mew  York,  6  6.  Topeka    Water    Supply    Co.    v. 

Misc.  516,  27  N.  Y.  Supp.  164,  56  N.  Potwin   Place,   43  Kan.   40"4,  23   Pac. 

Y.  St.  R.  845,  aff'd  89  Hun,  246,  35  578.     See  Stone  v.  Heath,  179  Mass. 

N.  Y.  Supp.  1109.  555,  60  N.  E.  975. 

3.  Board  of  Health  v.  Diamond  7.  Kelly  v.  New  York,  27  N.  Y. 
Mills  Paper  Co.,  63  N.  J.  Eq.  Ill,  Supp.  164,  56  N.  Y.  St.  R.  845,  0 
51  Atl.  1019,  aff'd  64  N.  J.  793,  53  Misc.  516,  aff'd  89  Hun,  246,  35  N.  Y. 
Atl.   1125,  under  Act   1899,  P.  L.  p.  Supp.  1109. 

73.  8.  Stone  v.  Heath,  179  Mass.  555, 

4.  Spring  Valley  Waterworks  v.  60  N.  E.  975.  See  chap.  15,  herein, 
Fifield,  136  Cal.  14,  68  Pac.  108.  as  to  powers  of  boards  of  health. 

5.  People     v.     Hulbert,    131    Mich. 

411 


i= 


§  305  Waters — Continued. 

town  is  prejudicial  to  or  endangers  the  health  of  the  town  or 
any  part  thereof,  it  ought  to  be  declared  a  nuisance  and  abated. 
If  it  does  not  prejudice  or  endanger  the  health  of  the  town, 
but  the  sickness  there  is  produced  by  other  causes,  it  should  not  be 
di?turbed.10  And  if  drainage  of  a  part  of  the  filth  of  a  town  into 
an  excavation  or  pond  is  such  as  to  cause  such  pond  to  be  dan- 
gerous to  health  and  the  source  of  disease  a  nuisance,  may  exist 
even  though  the  pond  be  of  too  recent  origin  to  have,  at  the  time 
of  suit,  affected  the  health  of  the  neighborhood.11  So,  it  is  suffi- 
cient to  constitute  a  public  indictable  nuisance  that  the  enjoyment 
of  life  and  properly  in  the  community  is  rendered  uncomfortable 
by  smells  and  stenches  produced  by  a  pond,  even  though  actual 
sickness  is  not  caused.12  And  the  depositing  of  the  sewage  of  a 
village  into  a  pond  may  cause  such  a  pollution  of  the  waters  as  to 
entitle  the  owner  to  a  perpetual  injunction.13  Nor  can  a  person 
make  a  nuisance  of  a  pond  which  is  on  another's  land,  even 
though  he  has  a  right  to  use  such  pond.14  If  a  corporation  has  the 
charter  right  to  draw  water  from  a  pond  at  a  certain  height  and 
it  is  lowered  by  wells  sunk  on  land  to  intercept  water,  and  slime 
and  offensive  vegetation  is  thereby  left  on  the  shore  to  the  detri- 
ment of  public  health  an  information  lies  to  restrain  sinking  such 
wells.15  But  an  allegation  that  defendant  caused  "  an  unhealthy 
pond  of  standing  water"  is  not  sufficient  to  authorize  the  intro- 
duction of  testimony  showing  injury  sustained  by  plaintiff  in  con- 
sequence of  sickness  caused  by  the  pond.16  So,  where  the  nuisance, 
caused  by  offensive  matter  being  cast  into  a  pond  whereby  the 
water  becomes  foul  and  poisonous,  is  one  which  can  be  removed 

9.  Holke  v.  Herman,  87  Mo.  App.  14.  Leonard   v.    Spencer,  34    Hun, 

125.  341,  aff'd    108  N.  Y.   338,   15  N.  E. 

1,0.  The    Mayor,    etc.,    of    Monte-  397,  13  N.  Y.   St.  R.  653,  28  W.  D. 

zuma  v.  Minor,  73  Ga.  484.  368. 

11.  West  v.  State,  71  Ark.  144,  15.  Attorney-General  v.  Jamaica 
71  S.  W.  483.  Pond  Acqueduct  Co.,  133  Mass.  361. 

12.  State  v.  Rankin,  3  S.  C.  438,  16.  Morris  v.  McCarney,  9  Ga. 
16  Am.  Rep.  737.  160. 

13.  Schriver  v.  Johnstown,  24  N.  As  to  sufficiency  of  allegation 
Y.  Supp.  1083,  71  Hun,  232,  54  N.  see  Carland  v.  Aurin,  103  Tenn.  555, 
Y.  St.  R.  573,  aff'd  148  N.  Y.  758,  43  53  S.  W.  940. 

N.  E.  980. 

412 


Waters — Continued.  ,§  306 

the  alleged  nuisance  does  not  constitute  a  permanent  injury  for 
which  a  recovery  can  be  had.17  But  the  fact  that  a  stagnant  pool 
created  by  a  railroad  company  could  have  been  drained  by  the  city 
will  not  relieve  such  company  from  liability  for  special  damages 
occasioned  thereby.18  In  a  Pennsylvania  case  a  canal,  part  of  the 
public  works  as  it  had  been  constructed  by  the  commonwealth, 
was  purchased  by  a  canal  company  and  water  escaped  and  formed 
pools  on  adjoining  lands  of  others,  which  pools  became  stagnant 
and  the  canal  company  was  held  liable  to  indictment  for  main- 
tenance of  a  nuisance.19  And  the  fact  that  lands  are  vacant  and 
the  admeasurement  of  damages  is  made  difficult  does  not  preclude 
recovery  for  damage  sustained  by  stagnant,  offensive  water  re- 
maining in  pits  on  adjoining  lands.20  So  one  who  suffers  special 
damage  from  stagnant  pools  of  water  may  recover  therefor,  even 
though  such  pools  may  be  a  public  nuisance,  but  whether  such 
special  damage  has  been  occasioned  is  a  question  of  fact.21  Again, 
a  corporation  acting  under  statutory  authority  and  in  conformity 
therewith  may  by  resolution,  in  the  nature  of  an  ordinance,  re- 
quire any  lot  of  land  within  the  city  limits1,  in  which  the  water 
becomes  stagnant,  to  be  filled  up  and  drained ;  and  where  it  is 
insisted  that  the  city  had  no  power  to  pass  such  a  resolution  because 
the  occasion  for  the  exercise  of  the  power  granted  had  not  arisen, 
and  that  the  excavation  was  not  in  fact  a  nuisance  the  question 
should  be  brought  properly  before  the  Supreme  Court.22 

§  306.  Drains,  ditches,  channels,  canals,  etc. — Diversion  of 
water — Pollution — Damages. — In  the  absence  of  a  license  or 
grant,  the  owner  of  land  has  no  right  to  divert  a  stream  of  water 

17.  Cleveland,  C.  C.  &  St.  L.  Ry.  21.  Savannah,  F.  &  W.  Ry.  Co.  v. 

Co.  v.  King,  23  Ind.  App.  573,  55  N.  Parish,  117  Ga.  893,  45  S.  E.  280. 

E.   875,  22.  City  of  Independence  v.  Purdy, 

1,8.  Savannah,   F.  &   W.   R.  Co.  v.  4G  Iowa,  202.     Examine  Bush  v.  Du- 

Parish,  117  Ga.  893,  45  S.  E.  280.  buque,  69  Iowa,  233;   Lasbury  v.  Mc- 

19.  Delaware  Div.  Can.  Co.  v.  Com-  Cague,  56  Neb.  220,  76  N.  W.  862; 
monwealth,  60  Pa.  St.  367,  100  Am.  Rochester  v.  Simpson,  10  N.  Y.  Supp. 
Dec.  570.  499,   57    Hun,    36,    32    N.   Y.    St.    R. 

20.  Busch  v.  New  York,  L.  &  W.  732;  Tuft  v.  Goff,  15  R.  I.  299,  3 
R.  Co.,  12  N.  Y.  Supp.  85,  34  N.  Y.       Atl.  591. 

St.  R.  7. 

413 


§  306  Waters — Continued. 

flowing  through  his  land  from  its  natural  course,  so  as  to  discharge 
it  upon  the  land  or  into  the  ditches  of  a  lower  land  owner  to  his 
damage;  and  where  it  appears  with  reasonable  probability  that  a 
defendant  is  about  so  to  do,  it  is  error  in  the  court  below  to 
vacate  an  injunction  restraining  him  therefrom  until  the  hearing 
of  the  cause.23  And  one  has  no  right  to  cast,  by  means  of  an 
artificial  channel,  drainage  or  other  waters  upon  another's  land, 
and  if  he  does  so,  such  act  constitutes  a  nuisance.24  If  a  prescrip- 
tive right  exists  to  maintain  or  to  have  maintained  for  the  benefit 
of  a  person  a  close  underground  drain  across  another's  land,  the 
former  may  continue  to  use  it  to  any  extent  which  will  not  affect 
the  latter  more  injuriously  than  when  used  before  that  as  a  close 
and  covered  drain.  In  such  case  it  would  make  no  difference  to 
the  latter  whether  the  amount  of  pollution  passing  through  and 
under  his*  land  be  more  or  less.  But  if  the  latter  un- 
covers his  drains  in  order  to  locate  privies  upon  it  and  thereby 
creates  a  nuisance  in  the  neighborhood  he  becomes  responsible.  If, 
however,  such  prescriptive  right  to  maintain  a  close  drain  over  an- 
other's land  does  not  exist,  but  only  a  drain  subject  to  openings  fit 
for  private  uses  of  the  latter,  then  the  former  would  be  entitled  to 
no  use  of  the  drain  which  would  inflict  a  greater  annoyance  or 
injury  than  was  imposed  by  such  prescriptive  easement  as  existed 
before  the  diversion.25     In  an  English  case,  the  plaintiff  and  the 

23.  Porter  v.  Dunham  &  Brown,  and  stores  situated  in  its  vicinity. 
74  X.  C.  767.  The     complainant      and      respondent 

24.  Paddock  v.  Somes,  102  Mo.  have  adjoining  premises  through 
226,  14  S.  W.  746,  10  L.  R.  A.  254.  which    the  drain    runs.       Lately    the 

25.  Masonic  Association  v.  Harris,  city  diverted  the  drain  at  a  point 
79  Me.  250,  9  Atl.  737,  citing  Gould  above  complainant's  premises,  carry- 
on  Waters.  §§  344-346.  ing  it  around   the   premises   of   both 

The  syllabus  to  this  case  reads  as  parties,  and  uniting  the  new  link 
follows:  "The  city  of  Belfast  has,  with  the  old  drain  below  respond- 
for  a  long  period,  maintained  an  un-  ent's  land.  Thereupon  respondent 
derground  or  covered  drain,  running  threatened  to  stop  up  the  old  drain 
through  an  ancient  brook  which,  in  on  his  own  land,  thereby  preventing 
its  natural  state,  carried  a  consid-  the  complainant  using  it,  alleging 
erable  volume  of  water  through  the  that  its  occupation  is  wrongful  and 
city  to  the  sea.  For  many  years  the  injurious  to  him,  the  complainant  de- 
drain  has  served  to  carry  off  waste  nying  it.  And  the  complainant 
water   and   foulings  from  the  houses  claims  not  only  the  right  to  have  the 

414 


Waters — Continued.  §  30 G 

defendant  were  respectively  occupiers  of  adjoining  houses.  An  old 
drain  which  commenced  on  the  defendant's  premises,  and  thence 
passed  under  and  received  the  drainage  of  several  other  houses, 
turned  back  under  the  defendant's  house,  and  thence  under  the 
cellar  of  the  plaintiff's  hause,  and  ultimately  into  a  public  sewer. 
The  part  of  the  return  drain  which  passed  through  the  defendant's 
premises  being  decayed,  the  sewage  escaped,  and  flowing  into  the 
plaintiff's  cellar  did  damage.  The  defendant  was  unaware  of  the 
existence  of  this  return  drain,  and  consequently  of  its'  want  of  re- 
pair; and  it  was  held  that  defendant  was  liable  for  the  damage 
done  to  the  plaintiff;  for  that  defendant's  duty  was  to  keep  the 
sewage  which  he  himself  was  bound  to  receive  from  passing  from 
his  own  premises*  to  the  plaintiff's  premises  otherwise  than  along 
the  old  accustomed  channel,  and  that  that  duty  was  independent 
of  negligence  on  his  part,  and  independent  of  his  knowledge  or 
ignorance  of  the  existence  of  the  drain.26  It  is  held  in  a  Con- 
necticut case  that  where  a  person  constructs  a  channel  for  a  brook 
within  his  own  boundaries  he  can  make  such  channel  as  he  pleases, 
irrespective  of  the  fact  whether  it  is  covered  or  not,  or  whether 
it  is  an  old  channel  or  an  entirely  new  one,  or  of  one  kind  or 
another,  provided  no  other  person  is  injured  by  reason  of  it,  and 
also  provided  that  it  will  carry  safely  and  without  injury  to 
others  the  waters  of  the  brook  that  is  not  merely  its  ordinary  flow, 
but  its  flow  in  heavy  rains  or  its  increase  in  volume  from  any 
ordinary  natural  cause.     But  if  the  channel  is  insufficient  for  such 

benefit  of  the  natural  brook  for  its  both  combined.  The  respondent  is 
waste,  but  also  the  right  to  a  greater  not  to  be  a  loser,  if  not  a  gainer, 
enjoyment  of  it,  acquired  by  the  pub-  thereby.  Held,  further,  that  if  the 
lie  by  user.  It  was  held  that  the  complainant,  by  this  rule,  suffers 
complainant  is  not  answerable  for  from  the  act  of  the  city  in  making 
any  consequences  of  the  diversion  the  diversion,  the  city  will  be  ans- 
caused  by  the  city.  But  their  privi-  werable  to  it  for  any  damages  sus- 
leges  may  be  curtailed  thereby,  as  tained,  unless  the  complainant  as- 
next  stated.  Held,  also,  that  the  re-  sented  to  the  change,  and  the  evi- 
spondent  should  not  have  any  in-  dence  is  that  it  did  assent  to  it." 
creased  burdens  or  inconveniences  put  Masonic  Association  v.  Harris,  79 
upon  his  premises  by  the  change,  and  Me.  250,  9  Atl.  737. 
that  his  burdens  should  not  be  aug-  26.  Humphreys  v.  Cousins,  46  L. 
mented,  to  his  injury,  by  the  act  of  J.  C.  P.  432,  2  C.  P.  D.  239,  36  L. 
the  city,  or  of  the  complainant,  or  of  T.  180,  25  W.  R.  371. 

415 


§  300'  Waters — Continued. 

and  causes  an  overflow  upon  another's  lands  its  original  insuffi- 
ciency and  subsequent  maintenance  would,  unless  other  facts  of  the 
case  operate  to  change  the  rule,  constitute  a  nuisance  and  render 
the  person  so  constructing  such  channel  liable  in  damages.  If 
a  city,  after  construction  of  such  channel,  uses  it  as  an  outlet  for 
sewage  and  surface  water  which  would  have  gone  in  other 
directions,  the  person  constructing  the  channel  would  not  be  liable 
for  any  damage  not  caused  by  the  natural  flow  of  the  water, 
including  that  occasioned  by  natural  causes,  and  the  fact  that  the 
overflow  from  natural  causes  is  difficult  of  ascertainment,  will  not 
render  such  person  liable  beyond  this.  In  estimating  the  relative 
amount  of  damage  "  it  may  be  very  difficult  for  a  jury  to  deter- 
mine just  how  much  damage  the  defendant  is  liable  for  and  how 
much  should  be  left  for  the  city  to  answer  for ;  but  this  is  no  more 
difficult  of  ascertainment  than  many  questions  which  juries  are 
called  uj>on  to  decide.  They  must  use  their  best  judgment,  and 
make  their  result,  if  not  an  absolutely  accurate  one,  an  approxi- 
mation to  accuracy.  And  this  is  the  best  that  human  tribunals 
can  do  in  many  cases.  If  the  plaintiff  is  entitled  to  damages 
and  the  defendant  liable  for  them,  the  one  is  not  to  be  denied 
all  damages,  nor  the  other  loaded  with  damages  to  which  he 
is  legally  liable,  simply  because  the  exact  ascertainment  of  the 
proper  amount  is*  a  matter  of  practical  difficulty."  27  Again,  it  is 
a  nuisance  to  cut  a  ditch  after  removing  an  embankment  in  such 
a  manner  as  to  let  water  pass  through  another  and  different  chan- 
nel upon  a  person's  land  which  theretofore  had  been  dry  and  so 
occasion  an  injury  and  damage  to  him.28  So,  a  ditch  may  be 
private  nuisance  where  it  is  so  negligently  constructed,  even 
though  a  right  of  way  exists  over  another's  land  to  construct  the 
same,  that  it  pollutes  his  well  and  cellar  and  leaves  stagnant 
water  on  the  land,  causing  the  loss  of  crops  and  an  injury  to 
health.29  And  if  by  the  maintenance  of  a  ditch,  which  others  have 
constructed,  a  person  diverts  surface  waters  so  that  they  are  cast 
upon  another's  land,  he  is  liable  for  a  nuisance.30     If,  however, 

27.  Sellick  v.  Hall,  47  Conn.  260.       Drainage  Dist.,  163  Mo.  198,  64  S.  W. 

28.  George  v.  Wabash   W.  R.   Co.,       149. 

40  Mo.  App.  433.  30.  Town  of  Cloversdale  v.  Smith, 

29.  Bungenstock    v.     Nishuahatua       128  Cal.  230,  60  Pac.  851. 

416 


Waters — Continued.  ,§  307 

a  statute  which  confers  upon  municipalities  and  like  bodies  the 
power  to  change  the  channel  of  watercourses  running  through 
them  and  to  construct  drains  and  ditches  it  implies,  unless  the 
exercise  of  such  right  is  oppressive,  a  nuisance,  and  an  interference 
with  navigation,  a  power  to  alter  a  navigable  river's  point  of 
discharge."1  In  an  Idaho  case  the  waters  of  a  natural  stream 
flowed  through  the  city,  crossing  ten  streets  therein,  and  during 
high  water  flooded  the  streets,  injuring  them,  to  the  damage 
of  the  city.  To  avoid  such  injury,  the  city  constructed  an  artificial 
canal  and  diverted  the  waters  of  said  stream  therein.  The  canal  was 
not  of  size  sufficient  to  convey  the  waters  of  said  stream,  and  over- 
flowed, and  injured  plaintiff's  lands.  It  was  held,  that  the  city  was 
liable  to  plaintiff  in  damages,  it  being  beneficially  interested  in 
the  change  of  the  course  of  a  natural  stream,  and  negligent  in  not 
constructing  the  canal  of  size  sufficient  to  carry  the  water  of  said 
stream  at  all  times,  and  in  quantities  that  might  be  reasonably  an- 
ticipated.32 Again,  where  a  canal  company  was  empowered  by  an 
act  to  take  the  water  of  certain  brooks  and  use  it  for  the  purposes 
of  their  canal ;  the  water  in  one  of  the  brooks  at  the  time  the  act 
passed  was  pure,  but  it  afterwards  became  polluted  by  drains  be- 
fore it  reached  the  canal,  and  it  was  then  penned  back  in  the  canal 
and  became  a  public  nuisance;  it  was  held  that  the  company 
was  liable  to  be  indicted  for  the  nuisance,  as  there  was  nothing  in 
the  act  compelling  them  to  take  the  water,  or  authorizing  them 
to  use  it  so  as  to  create  a  nuisance.33 

§  307.  Same  subject  continued. — In  a  Maine  decision  the  court 
says :  "  It  is  quite  evident  that  a  town,  independent  of  any  statu- 
tory authority,  has  no  corporate  power  to  dig  ditches  across  an- 
other's land.  Such  an  act  is  ultra  vires;  and  any  express  majority 
vote  based  on  a  proper  article  in  a  warrant  calling  a  meeting 
of  the  defendants  directing  such  acts,  would  create  no  liability  on 

31.  Canal  Comm'rs  v.  East  Peoria,  32.  Willson  v.  Boise  City,  6  Idaho. 

179  111.  214,  53   N.  E.   G33,  aff'g  75  391,  55  Pac.  887. 

111.  App.  450.  33.  Reg    v     Bradford    Navigation 

Municipal  regulation  of  drains  Co.,  6   B.   &  S.   631,   34   L.  J.  Q.   B. 

as  a  nuisance.     See  note,  38  L.  R.  A.  191,  11  Jur.    (U.  S.)    769,  13  W    R. 


319. 


892. 

417 


• 


§  307  Waters — Continued. 

the  part  of  the  town.34  But  if  a  municipal  corporation  introduce,, 
within  its  boundaries,  water  for  manufacturing  purposes,  and 
by  turning  said  water  into  its  drains  increases  the  water  flowing 
into  adjoining  lands  to  the  damage  of  the  same,  an  action  will  lie 
for  the  damages  against  the  corporation,  and  this  is  true,  even  if 
the  increased  water  thus  cast  upon  the  adjoining  lands  is  emptied 
thereon  to  prevent  the  said  canal  from  overflowing  its  banks,  or 
by  reason  of  the  actual  overflow  of  said  banks,  provided  the  ad- 
joining lands  would  not  have  been  overflowed  without  said  canal.35 
An  artificial  stream,  such  as  a  canal,  is  entitled  to  protection  from 
pollution.36  So,  where  the  plaintiff,  by  permission  of  a  canal  com- 
pany, made  a  communication  from  the  canal  to  his  own  premises 
by  which  water  got  to  those  premises,  with  which  water  he  fed  the 
boilers  of  his  engine,  the  defendant,  without  right  or  permission 
from  the  company,  fouled  the  water  in  the  canal,  whereby  the 
water  as  it  came  into  plaintiff's  premises  was  fouled,  and  by  the 
use  of  it  plaintiff's  boilers  were  injured,  it  was  held  that  plaintiff 
might  maintain  an  action  against  defendant  for  thus  fouling  the 
water.37  So  the  discharge  of  impure  and  foul  water  into  a  canal 
where  its  waters  are  used  for  irrigation  or  other  useful  purposes 
creates  a  nuisance.38  If  a  canal,  which  is  an  irrigating  ditch, 
has  been  constructed  at  great  expense  more  than  five  years  before 
the  incorporation  of  a  city  through  parts  of  certain  streets 
of  which  it  flows  and  said  canal  after  leaving  the  city  supplies 
water  for  the  irrigation  of  many  farms  and  within  the  city  ex- 
tensive and  costly  mills  have  been  erected  upon  its  banks  and 
operated  by  it's  waters,  and  these  industries  would  be  injured, 
if  not  utterly  destroyed,  should  the  canal  be  prevented  from  run- 
ning within  the  city,   and   at  the  time  the  canal  or   ditch  was 

34.  Seele  v.  Deering,  79  Me.   347,  37.  Whaley  v.  Laing,   2  H.  &  N. 
348,  10  Atl.  45,  1  Am.  St.  Rep.  314,       476. 

citing  Cushing  v.  Bedford,  125  Mass.  38.  North  Point  Consol.  Irrig.  Co. 

526;      Lemon  v.  Newton,   134  Mass.  v.  Utah  &  S.  L.  Canal  Co.,  16  Utah, 

476.  246,  270,  8  Am.  &  Eng.   Corp.   Cas. 

35.  Phinizy  v.  City  Council  of  Au-  N.  S.  98,  67  Am.  St.  Rep.  607,  40  L. 
gusta,  47  Ga.  260.  R.  A.  851,  52  Pac.  168;  Utah  Comp. 

36.  Indianapolis     Water     Co.     v.  Laws  1888,  §  4566. 
American    Strawboard    Co.,    57    Fed. 

1000. 

418 


Waters — Continued.  8  307 

commenced  the  board  of  supervisors  of  the  county  had  been  con- 
sulted about  the  matter  and  made  no  objection,  although  no  formal 
action  was  taken  in  the  matter  by  said  board,  and  persons  who 
owned  all  the  property  in  what  afterwards  became  the  city,  urged 
its  construction,  and  the  existence  of  the  canal  was  recognized  by 
the  city  by  ordinances  and  by  official  acts  regularly  done  after  its 
incorporation,  and  said  ditch  or  canal  was  continuously  used  to 
the  time  of  suit,  and  the  statutes  of  the  State  recognized  ditches 
and  canals  as  of  public  use  and  regulated  such  use,  a  decree  in 
favor  of  the  city  declaring  such  canal  a  nuisance  per  se  and  order- 
ing it  to  be  entirely  abated  and  that  it  be  filled  up  and  entirely 
destroyed  is  not  justified  and  will  be  reversed.     In  such  a  case 
many  equitable  considerations  operate  in  defendant's  favor  and 
large  properties  should  not  be  destroyed  unless  such  result  neces- 
sarily follows  from  the  application  of  rules  of  law,  even  though 
it  may  not  be  clear  whether  an  estoppel  in  pais  could  be  invoked. 
If  the  nuisance  consists  merely  in  the  manner  in  which  the  canal 
is  conducted  and  managed  it  would  be  a  nuisance  which  could  be 
remedied  without  a  total  destruction  of  the  property.39     In  an 
Indiana  case  an  injunction  was  also  issued  under  the  following 
circumstances:     The  plaintiff  operated  a  woolen  mill  propelled 
by  water  supplied  by  an  artificial  race,  the  water  from  which 
was  used  also  in  coloring  the  goods  manufactured,  pure  water  being 
required  therefor.     The  defendant  was  rapidly  cutting  a  ditch  for 
the  draining  of  its  streets,  to  discharge  into  the  race,  which  would 
so  contaminate  the  water  thereof  with  filth  as  to  render  it  unfit  for 
use  m  coloring  and  this  would  be  accomplished  in  two  or  three 
days,  if  not  arrested;  it  would  also  carry  sand  into  the  plain- 
tiff's race,   obstructing  the  flow  of  water  to  the  mill;  that  the 
defendant,  an  incorporated  city,  was  making  said  ditch  as  a  part 
o±  the  work  of  grading  a  certain  street,  according  to  a  new  and 
changed  grade  thereof,  a  different  grade  having  been  previously 
established;    and   damages   to  the   plaintiff  resulting  from   such 
change  of  grade  had  not  been  assessed  or  tendered.     The  race  at 
the  point  of  intersection  with   the  proposed   ditch  was  outside 

39.  Fresno  v.  Fresno  Canal  &  Irri- 
gation Co.,  98  Cal.  179,  32  Pac.  943. 


419 


§307  Wateks — Continued. 

of  the  city,  its  margin  being  the  boundary  of  the  city.40  But  a 
board  of  health  may  not  arbitrarily  and  under  pretense  of  abating 
a  nuisance  construct  a  public  improvement  such  as  a  large  drain, 
although  it  may  have  authority  to  condemn  and  abate  a  brook 
as  a  public  nuisance  and  construct  such  improvements  as  will 
probably  prevent  the  recurrence  of  the  trouble.41  An  abutting 
owner,  however,  has;  a  right  to  secure  access  to  the  traveled  way 
by  filling  up  a  drain  beyond  the  traveled  roadway,  and  he  is  not 
liable  as  for  a  nuisance  by  so  doing.42  If  a  municipal  corporation 
negligently  constructs  a  drain  or  sewer  or  maintains  the  same 
in  such  a  manner  that  even  though  it  is  properly  constructed,  it 
constitutes  a  nuisance  and  injures  private  persons  or  their  prop- 
erty or  endangers  their  health,  it  is  liable  in  damages.  If  the 
nuisance  is  not  of  a  permanent  character  but  such  as  the  city 
may  abate  at  will,  and  when  abated  the  injury  occasioned  by  its 
maintenance  will  cease,  the  injured  person  can  recover  merely 
the  damages  which  he  has*  sustained  within  the  period  prescribed 
by  the  statute  of  limitations  for  suing.  If,  however,  the  nuisance 
is  not  of  a  permanent  character,  recovery  may  be  had  in  one 
action  of  all  damages,  past  and  future,  which  the  maintenance  of 
the  nuisance  has  occasioned  and  will  occasion.  In  the  case  of  per- 
manent injury  to  the  freehold,  resulting  from  the  proper  construc- 
tion and  proper  maintenance  of  any  work  of  public  improvement, 
the  measure  of  damages  is  the  difference  in  market  value  before 
and  after  the  work  was  constructed  and  maintained.  If  the  market 
value  of  property  is  increased  by  a  wrongful  act  of  a  municipality 
it  would  still  be  liable  for  actual  damages  resulting  from  injury  to 
property  of  a  citizen.  The  above  rules  are  applied  in  a  case  where 
the  city  constructed  a  large  ditch  between  plaintiff's  property  and 
the  road,  and  also  built  a  sewer  or  culvert  to  connect  this  ditch 
with  another  large  ditch  running  in  a  different  direction,  the 
effect  of  which,  it  was  alleged,  was  to  divert  the  water  flowing  into 
the  last  mentioned  ditch,  through  the  culvert  into  the  ditch  which 
had  been  built  in  front  of  plaintiff's  property,  and  the  result  of  the 

40.  City  of  Columbus  v.  The  Hy-  41,  Haag  v.  Mt.  Vernon,  41  App. 

draulic    Woolen    Mills    Co.,     33    Ind.       Div.  366,  58  N.  Y.  Supp.  581. 
(33  Black)   435.  42.  State     v.     Campbell,     80    Mo. 

App.  110,  2  Mo.  App.  Rep'r   534. 

420 


Waters — Continued.  §  307 

city's  action  was,  that  water  remained  in  the  ditch,  becoming  stag- 
nant and  unhealthy;  that  the  water  frequently  overflowed  plain- 
tiff's premises ;  that  the  construction  and  maintenance  of  the  ditch 
had  interfered  with  plaintiff's  access  to  the  street,  necessitating 
the  construction  by  him  of  bridges  and  culverts  and  otherwise 
injured  his  property.  The  court,  per  Cobb,  J.,  also  said :  "  The 
nuisance  complained  of  in  this  case,  that  is,  the  improper  mainte- 
nance of  the  ditch,  is  not  a  permanent  one,  but  rather  one  which 
can  be  abated  by  the  city  at  any  time.  The  nuisance  complained 
of  does  not  consist  in  the  mere  presence  of  the  ditch  or  of  the  cul- 
vert, but  in  the  manner  in  which  they  are  maintained.  The  cul- 
vert was  constructed  to  divert  water  into  the  ditch.  The  nuisance 
may  be  abated,  then,  either  by  restoring  the  water  to  its  former 
flow,  or  by  repairing  the  ditch  in  such  a  way  that  it  will  carry  off 
the  water  which  comes  into  it  through  the  culvert.  We  do  not 
think,  therefore,  that  this  is  a  case  for  the  recovery  of  prospective 
damages  resulting  from  the  construction  and  maintenance  of  the 
ditch  as  a  nuisance.  The  plaintiff  is,  however,  entitled  to  recover 
for  all  legitimate  damages  of  every  kind  which  he  has  sustained, 
at  least  up  to  the  time  that  he  served  his  notice  of  claim  upon  the 
city  authorities.  He  can  recover  for  the  increased  expense  to 
which  he  has  been  put  in  the  building  of  bridges,  etc.,  by  reason  of 
the  construction  and  maintenance  of  the  ditch.  He  can  recover 
whatever  actual  damage  he  sustained  by  reason  of  sickness  or  by 
reason  of  injury  to  his  property,  growing  out  of  the  maintenance 
of  the  ditch  in  such  a  way  as  to  make  the  same  a  nuisance.  In  a 
word,  the  plaintiff  can  recover  all  the  actual  damages1  he  has  sus- 
tained by  reason  of  the  wrong  complained  of,  on  the  theory  that  the 
ditch  as  maintained  is  a  nuisance ;  but  he  can  recover  nothing  on 
the  theory  that  the  city  will  continue  to  maintain  the  nuisance. 
If,  as  matter  of  fact,  it  does  continue,  to  maintain  it,  he  can  bring 
another  action  for  damages  after  they  have  accrued,  and  do  this 
just  as  long  as  the  city  fails  and  refuses  to  abate  the  nuisance.  If 
the  rental  value  of  the  plaintiff's  premises  has  been  less  during  the 
maintenance  of  the  nuisance  and  by  reason  of  it,  this  would  be  a 
proper  element  of  damage,  and  the  damage  to  the  plaintiff's  land 
caused  by  caving  and  washing  can  also  be  recovered,  the  measure 
of  damages  being  the  cost  of  restoring  his  land  to  the  condition  in 

421 


§308  Waters — Continued. 

which  it  was  prior  to  the  injury.     The  plaintiff  has  a  right,  how- 
ever, to  recover  damages  if  his  property  was  damaged  by  the  con- 
struction   of    the    ditch,    even    though    it    was    properly    con- 
structed    and     has     been     properly     maintained.     If    his     free- 
hold estate  was   injured  by  the  construction   of  the   ditch,   the 
measure  of  damages  would  be  the  difference  in  market  value  before 
and  after  the  construction  of  the  ditch.     The  trial  judge  was  of 
opinion  that  injury  to  the  freehold  was  not  a  proper  element  of 
damage,  under  the  allegations  of  the  petition  to  the  proof  offered 
in   support  thereof.    In  this   we  think  he  erred.      The  petition 
claimed  damages  on  account  of  diminished  market  value  resulting 
from  injury  to  the  freehold,  and  also  for  the  actual  damages  sus- 
tained on  account  of  the  maintenance  of  the  ditch  in  such  an  im- 
proper manner  as  that  it  became  a  nuisance.     There  was  evi- 
dence to  authorize  a  recovery  on  both  counts.     Several  of  the 
charges  of  the  court  were  not  in  harmony  with  this  view,  and  a 
reversal  of  the  judgment  refusing  a  new  trial  is  therefore  rendered 
necessary."  43     So  where  different  owners  of  property  turn  their 
drainage  into  a  private  drain  pipe  before  it  connects  with  a  public 
sewTer,  such  pipe  is  a  single  private  drain  under  the  English  Public 
Health  Act  of  1890,  subjecting  the  owner  to  the  expense  incurred 
in  removal  of  the  nuisance.44 

§  308.  Legislature  may  act  through  own  agencies — Creation 
of  sewerage  district — Independent  sources  of  pollution — When 
nuisance  does  and  does  not  exist. — In  a  comparatively  recent  case 
the  construction  and  constitutionality  of  certain  lagislative  enact- 
ments were  passed  upon  by  the  court.  One  statute  created  a  sewer- 
age district  and  another  act  was  for  the  purpose  of  relieving  from 
pollution  the  rivers  and  streams  within  such  district.  Both  statutes 
were  held  constitutional.  It  was  also  held  that  such  sewerage  dis- 
trict was  not  a  municipal  corporation ;  that  the  powers  conferred 
upon  the  sewerage  commissioners  were  executive  and  administra- 

43.  Langley  v.  Augusta,  118  Ga.  S.  37.  Examine  Geen  \.  St.  Mary 
590,  45  S.  E.  486.  (1898),  2  Q.  B.   1,  67  L.  J.  Q.  B.  N. 

44.  Seal  v.  Merthyr  Tydfil  Urban  S.  557;  Lancaster  v.  Barnes  Dist. 
Dist.  Council,  77  Law.  T.  R.  303  Council  (1898),  1  Q  B.  855  (Q.  B.), 
(1897)  2  Q.  B.  543,  67  L.  J.  Q.  B.  N.  78  Law  T.  E.  355. 

422 


Waters — Continued.  §  308 

tive  in  character  and  not  legislative ;  that  in  providing  for  the 
establishment,  maintenance  and  operation  of  public  works  in  order 
to  relieve  the  natural  streams  from  pollution  detrimental  to  the 
health  of  the  neighborhood,  the  legislature  was  not  required  to 
delegate  the  work  to  existing  municipalities  nor  to  establish  a  new 
municipality  for  the  purpose,  but  could  act  directly  through  its 
own  agencies.     It  was  also  decided  that  it  was  not  a  constitutional 
right  of  the  people  to  have  all  matters  of  local  concern  entrusted 
to  municipal  corporations,  that  within  constitutional  limits  the 
people  of  the  State,  acting  through  the  general  legislature,  could 
delegate  to  the  municipalities  such  portion  of  political  power  as 
they  deemed  expedient,  could  withhold  other  powers  and  withdraw 
any  part  of  that  delegated;  that  the  act  being  constitutional  in  its 
main  purpose  of  establishing  and  regulating  a  sewerage  district, 
such  of  its  provisions  as  incidentally  regulated  the  internal  affairs 
of  existing  municipalities  in  order  to  carry  out  the  main  purpose 
were  not  invalid  as  being  special  legislation,  since  the  municipali- 
ties thus  affected  were  thrown  into  a  class  by  themselves  from  the 
very  necessity  of  the  case  and  no  distinctions  were  made  between 
these  several  municipalities  except  such  as  were  germane  to  the 
purposes  of  legislation.    But  although  the  act  relating  to  the  pollu- 
tion of  the  natural  streams  and  rivers  in  question  treated  for  prac- 
tical purposes  the  situation  as  a  public  nuisance,  yet  to  the  extent 
that  the  polluting  materials  proceeded  from  municipal  sewers,  that 
by  legislative  license  were  permitted  to  be  discharged  into  the 
rivers,  such  pollution  could  not  be  declared  a  nuisance  in  law  so 
long  as  the  license  remained  unrevoked,  the  object  of  the  statute 
being  to  revoke  the  legislative  authority  previously  given  to  the 
municipalities  in  that  respect.     A  material  part,  however,  of  the 
pollution  of  the  rivers  proceeded  from  sources  independent  of  the 
municipal  sewers  and  was  not  covered  by  any  legislative  authority, 
and  to  that  extent  there  might  or  might  not  be  a  nuisance  in  law. 
But  the  right  of  a  city  to  so  empty  its  sewerage  into  a  river  is 
merely  a  legislative  license,  revokable  whenever  the  public  health 
and  safety  require.45 

45.  Van   Cleve    v.    Passaic    Valley  Pueblo  waters;  although  mod- 

Sewerage  Comm'rs    (N.  J.,  1904),  58       eru    systems    of   house    drainage 
_^tl.  571.  may  have  been  unknown  in  the  foun- 

423   • 


§  309  Waters — Continued. 

§  309.  Expert  or  scientific  evidence  as  to  pollution  and  effect 
thereof. — Expert  testimony  is  admissible  to  show  the  character 
and  extent  of  the  damage  caused  by  sewage  pollution ;  as  to  bac- 
teria, the  extent  to  which  they  can  be  carried  and  survive  in  water, 
and  the  danger  therefrom.46  In  an  English  case  where  the  ques- 
tion whether  the  discharge  of  sewage  and  the  pollution  of  water 
constituted  a  nuisance,  the  court,  per  Turner,  L.  J.,  says :  "  We 
come,  then,  to  the  questions  above  proposed,  the  first  of  which,  the 
question  of  present  nuisance,  is  purely  a  question  of  fact,  depend- 
ing upon  the  weight  of  the  evidence  upon  the  one  side,  and  upon 
the  other  there  are  two  distinct  branches  of  the  evidence ;  first, 
what  may  be  called  the  scientific  evidence ;  and  secondly,  the  evi- 
dence which  points  to  the  facts  as  they  actually  stand.  Speaking 
with  all  possible  respect  to  the  scientific  gentlemen  who  have  given 
their  evidence  in  this  case,  and  as  to  whom  it  is  but  just  to  say 
that  they  have  dealt  with  the  case  most  ably  and  most  imparially, 
I  think  that  in  cases  of  this  nature  much  more  weight  is  due  to  the 
facts  which  are  proved  than  to  conclusions  drawn  from  scientific 
investigations'.  The  conclusions  to  be  drawn  from  scientific  inves- 
tigations are,  no  doubt,  in  such  cases,  of  great  value  in  aid  or  ex- 
planation and  qualification  of  the  facts  which  are  proved;  but  in 
my  judgment,  it  is  upon  the  facts  which  are  proved,  and  not  upon 
such  conclusions,  the  court  ought,  in  these  cases,  mainly  to  rely. 
I  think  so  the  more  strongly  in  this  particular  case,  because  it  is 
obvious  that  the  scientific  examinations  which  have  been  made  of 
the  water  of  this  brook  must  have  depended  much  upon  the  state 
of  circumstances  which  existed  at  the  time  when  those  investiga- 

dation    of     a     Spanish     or     Mexican  and  to  keep  the  sewer  in  a    state  of 

pueblo,  yet  the  right  to  make  an  out-  efficiency    by    the   necessary   flushing, 

fall    sewer    when    necessary    for    the  must  be  held  to  be  fairly  within  the 

health  and  convenience  of  the  city  of  pueblo    right.     City    of    Los    Angeles 

Los  Angeles  is  held  to  exist  since  the  v.    Pomeroy,    124   Cal.    640,    57    Pac. 

water   was   granted    or    dedicated   as  585. 

much  for  the  health  and  convenience  46.  Hollenbeck  v.  City  of  Marion, 

of  the  pueblo  as  for  any  other  pur-  116    Iowa,    69,    89    N.    W.    210.     See 

pose,   and   since   it    has   been    practi-  Missouri     v.     Illinois     (The    Chicago 

cally   settled   that    the    pueblo    right  Drainage    Case),    200    U.   S.    part   5, 

expands  with  the  increasing  needs  of  given  in  full  in  §  299,  herein,  where 

the    inhabitants,   the   right   to   drain  similar  evidence  was  considered. 
the  city  by  means  of  an  outfall  sewer 

424 


Waters — Continued.  §  310 

tions  took  place.  They  might  well  have  been  affected  by  the  force 
of  the  stream  at  the  time  of  investigation,  and  probably  by  the 
state  of  the  weather  as  tending  or  not  tending  to  the  diffusion  or 
dispersion  of  noxious  smells.  In  my  view  of  this  case,  therefore, 
the  scientific  evidence  ought  to  be  considered  as  secondary  only  to 
the  evidence  as  to  the  facts."  47  So  evidence  as  to  the  effect  of 
disease  germs  must  not  be  purely  speculative,  and  must  be  based 
upon  facts  as  in  case  of  evidence  as  to  cholera  germs  being  erron- 
eously admitted,  there  being  no  evidence  of  the  existence  of  such  a 
disease  in  the  city  at  the  time  which  could  have  passed  into  its 
sewage.48 

§  310.  Character  of  odors,  proportion  and  effect  of  discharge — 
Degree,  nature  and  character  of  pollution  generally. — In  an 
action  for  damages1  for  a  nuisance  arising  from  discharge  of  sew- 
age, the  character  of  the  odors  arising  from  such  sewage  is  a 
material  part  of  the  case,  and  an  ordinary  witness  may  state  not 
only  their  nature  but  their  effects  as  observed  by  him,  and  may 
state  that  the  smell  of  gases  from  the  outlet  of  the  sewer  made  him 
sick.49  So  where  a  person  empties  foul  water  into  a  stream,  refer- 
ence will  be  had  in  an  action  against  that  person  for  such  act  to 
the  proportion  and  effect  of  such  discharge  on  the  stream.50  And 
if  the  odor  from  the  mouth  of  a  private  drain  under  a  public 
street  is  so  slight  as  to  have  been  perceptible  to  only  a  single  per- 
son, and  then  only  once  out  of  a  number  of  times,  no  injunction 
will  be  granted.51  So  evidence  is  admissible  to  show  the  character 
of  filth  drained  into  a  pool  in  an  action  for  maintaining  a  stag- 
nant pool  alleged  to  cause  bad  odors  and  sickness  in  plaintiff's 
family.52  Again,  the  tendency  of  a  river  to  purify  itself  owing  to 
the  rapidity  of  its'  current  and  other  circumstances  is  a  factor  of 
importance  in  construing  a  statute  prohibiting  the  deposit  of  offen- 

47.  Goldsmid  v.  Tunbridge  Wells  of  Boone,  121  Iowa,  258,  96  N.  W. 
Improvement    Commissioners,    35    L.       853. 

J.  Ch.  382,  L.  R.   1   Ch.  349,  12  Jur.  50.  Ridge  v.  Midland  Ry.  53  J.  P. 

(U.  S.)    308,  14  L.  T.  154,   14  W.  R.  55. 

562,  per  Turner,  L.  J.  51.  Wood    v.    McGrath,     150    Pa. 

48.  Wing  v.  Rochester,  9  N.  Y.  St.  451,  24  Atl.  682. 

ft.  473.  52.  Savannah,  F.  &■  W.  Ry.  Co.  v. 

49.  Suddith   v.   Incorporated    City       Parish,  117  Ga.  893,  45  S.  E.  280. 

425 


§  311  Waters — Continued. 

sive  and  polluting  matter  into  certain  waters,  especially  when  the 
pollution  would  be  almost  imperceptible,  or  at  the  most,  very 
slight,  and  this  consideration  would  also  apply  to  city  sewage.53 
And  if  the  act  done,  as  in  a  case  of  felling  trees  into  a  stream, 
does  not  materially  affect  the  quality  of  the  water  claimed  to  be 
polluted,  an  injunction  will  not  issue.54  So  where  the  business  of 
rendering  carcasses  is  located  on  a  river's  banks,  it  may  be  carried 
on  by  a  process  which  prevents  the  escape  of  stenches,  effluvia  or 
gases  and  so  not  constitute  a  pollution  of  the  water  and  not  be 
within  a  statute  prohibiting  the  maintenance  of  similar  estab- 
lishment's.55 But  a  nuisance  in  polluting  or  fouling  water  may 
exist  even  though  it  may  be  imperceptible  at  high  water,  where 
unhealthy,  offensive  odors  are  generated  by  the  refuse  in  low 
water.56  It  is  not  a  question  of  the  extent  of  user  interfered  with 
by  pollution  of  a  watercourse  which  determines  the  right  to  relief, 
it  is  sufficient  if  there  has  been  an  actual  invasion  of  the  right  to 
have  the  water  flow  in  its  natural  purity.57  So  it  is  a  nuisance  to 
throw  from  day  to  day  into  water,  used  for  the  ordinary  purposes 
of  life,  any  substance  that  renders  it  less  pure  and  excites  disgust 
in  those  who  use  it.58 

§  311.  Pollution  of  waters — General  decisions. — One  invested 
by  grant  from  the  government  with  title  to  land,  through  which 
a  water  course  runs,  acquires  thereby  no  greater  right  to  the  use  of 
the  water  than  others  over  whose  premises  the  same  stream  passes, 
and  cannot  so  use  it  as  to  corrupt  or  impair  its  quality  to  their 
prejudice  or  injury.59     But  a  person  has  the  right  to  the  reason- 

53  Walker  v.  Aurora,  140  111.  402,  57.  Mann    v.     Willey,     64    N.    Y. 

29   N.   E.   741.     See  Missouri  v.  Illi-  Supp.    589,    51    App.    Div.    169,   aff'd 

nois    (The  Chicago   Drainage   Case),  168  N.  Y.  664,  61  N.  E.  1131. 

200    U.    S.    part   5,   given    in    full    §  58.  Lewis  v.  Stein,  16  Ala.  214,  50 

299    herein,    it    being    there   claimed  Arn.  Dec.  177. 

that  the  water  was  not  polluted  but  Nature    and    extent    of    pollu- 

in  fact  was  purified.  tion.     See  Mayor  &  City  Council  of 

54.  Fisher  v.  Feige,  137  Cal.  39,  Baltimore  v.  The  Warren  Manufact- 
69  Pac.   618.  uring  Co.,  59  Md.  96,  108. 

55.  Tiede  v.  Schneidtt,  105  Wis.  59.  Lewis  v.  Stein,  16  Ala.  214,  50 
470,  81  N.  W.  826.  Am.  Dec.  177. 

56.  Belton   v.   Baylor   Female  Col- 
lege, Tex.  Civ.  App.  33  S.  W.  680. 

426 


Waters — Continued.  §  312 

able  and  beneficial  use  of  his  land,  therefore  permitting  cattle  to 
enter  a  stream  of  water  from  pasture  land  and  to  befoul  the 
stream  even  though  a  water  company  is  injured  thereby  as  to  its 
use  of  the  water  is  not  a  ground  for  an  injunction  even  though  the 
water  company  is  incorporated.60  It  constitutes  a  public  nuisance, 
however,  to  befoul  the  waters  of  a  non-navigable  stream  by  main- 
taining hog  pens  and  stables  along  its  banks  where  a  considerable 
number  of  persons  use  the  water.61  But  where  the  prohibition  of 
a  statute  provides  against  the  erection  of  slaughter  houses  on  the 
banks  of  a  stream  which  shall  "  flow  through  "  any  city,  such  stat- 
ute is  to  be  construed  to  forbid  such  erection  above  that  point  where 
the  stream  "  flows  through  "  the  city.62  And  where  a  statute  pro- 
hibits the  collecting  or  suffering  filthy  water,  etc.,  to  remain  in 
public  places,  such  statute  covers  a  navigable  stream.63  If  a  spring 
from  which  travelers  are  accustomed  to  drink  is  located  near  a 
public  highway,  it  constitutes  a  public  nuisance  to  urinate  therein.64 
A  nuisance  may  also  consist  of  seaweed  left  in  a  harbor  by  the 
action  of  the  sea  and  there  creating  noxious  odors  injurious  to 
health ;  a  corporation  in  whom  the  harbor  is  vested  is  bound  to 
remove  such  nuisance.65 

§  312.  Diversion  or  obstruction  of  water — Generally. — Sub- 
ject to  such  rules  and  qualifications  hereof  as  appear  elsewhere 
herein  in  regard  to  riparian  rights,66  and  in  so  far  as  the  same  are 
applicable  here,  it  may  be  stated  that  ordinarily  the  right  of  an 

60.  Helfrich  v.  Catonsville  Water  ippi.  See  Witham  v.  New  Orleans, 
Co.,  74  Md.  269,  13  L.  R.  A.   117,  22       49  La.  Ann.  929,  22  So.  38. 

Atl'.  72,  28  Am.  St.  Rep.  245.  English     Public     Health     Act 

61.  People,  Ricks  Water  Co.  v.  1875,  §  17,  construed  as  to  deleteri- 
Elk  River  Mill  &  L.  Co.,  107  Cal.  214,  ous  matter.  Durrant  v.  Branksome 
40  Pac.  486.  Urban    Council,   76    Law  T.    R.    739, 

Casting     garbage     into     great  (C.  A.),    (1897)    2  Ch.  291,  66  L.  J. 

lake.     See  Kuehn  v.   Milwaukee,  92  Ch.  N.  S.  653,  aff'g  76  Law  T.  Rep. 

Wis.  263,  65  N.  W.   1030.  486,  66  L.  J.  Ch.  N.  S.  517. 

62.  Olrich  v.  Gilman,  31  Wis.  495.  64  State  v.  Taylor,  29  Ind.  517. 

63.  State  v.  Wabash  Paper  Co.,  21  65.  Proprietors  of  Margate  Pier  v. 
Ind.  App.  167,  1  Rep'r  234,  51  N.  E.  Town  of  Margate,  20  L.  T.  N.  S.  504, 
949,  48  N.  E.  653.                                            under    18    &    19   Vict.   C.    121,    s.    12 

Application     of     statute     pro-        (nuisances,  Removal  Act,   1855). 
hibiting     deposits      in     Mississ-  66.  See  §§  265  et  seq.,  herein. 

427 


§312 


Waters — Continued. 


upper  riparian  proprietor  or  of  a  person  owning  the  land  through 
or  over  which  a  natural  stream  flows  to  divert  the  water  thereof 
should  not  be  unreasonably  or  wrongfully  exercised  to  the  mater- 
ial injury  of  adjacent  land  owners  or  lower  riparian  proprietors 
in  their  right  to  the  use  of  the  water  or  to  have  it  flow  without 
serious  or  material  diminution  or  alteration.67  But  it  is  a  perver- 
sion of  the  common  law  doctrine  as  to  the  diversion  of  water 
courses  to  apply  that  doctrine  to  a  stream  rising  in  springs  and 
passing  by  a  sinuous  course  under  sinks  and  manufactories  through 
culverts  and  emptying  its  filth,  before  its  final  discharge,  into  a 
river  upon  low  ground  in  the  midst  of  the  city  through  which  it 
passes,  thereby  endangering  the  health  and  comfort  of  a  numerous 
surrounding  population ;  and  the  city  may  divert  or  fill  up  such  a 
stream  for  the  protection  of  the  lives,  health  and  comfort  of  its 
inhabitants.68  While  the  mere  obstruction  of  a  waterway  is  not 
necessarily  a  nuisance,69  yet  if  a  city  obstructs  a  watercourse  by 


67.  Starr  v.  Beck,  133  U.  S.  541, 

10  Sup.  Ct.  350,  33  L.  Ed.  761;  Cali- 
fornia Pastoral  &  Agricultural  Co. 
v.  Enterprise  Canal  &  Land  Co.,  127 
Fed.  741;  Union  Mill  &  Min.  Co.  v. 
Danberg,  81  Fed.  73;  Gould  v. 
Eaton,  117  Cal.  539,  49  Pac.  577,  38 
L.  R.  A.  181;  Parke  v.  Kilham,  8 
Cal.  77,  68  Am.  Dec.  310;  Dunn  v. 
Cooper,  208  111.  391,  70  N.  E.  339; 
Missouri  P.  R.  Co.  v.  Keys,  55  Kan. 
205,  40  Pac.  275;  Kay  v.  Kirk,  76 
Md.  41,  24  Atl.  326;  Brown  v.  Kist- 
ner,  190  Pa.  499,  42  Atl.  885; 
Hughesville  Water  Co.  v.  Person, 
182  Pa.  450,  41  W.  N.  C.  189,  38  Atl. 
584;  Clark  v.  Pennsylvania  R.  Co., 
145  Pa.  438,  29  W.  W.  C.  49,  22 
Pitts.   L.  J.   N.  S.    138,   22  Atl.  989, 

11  Ry.  &  Corp.  L.  J.  3;  Plattsmouth 
Water  Co.  v.  Smith,  57  Neb.  579,  78 
N.  \V.  275;  Schultz  v.  Sweeney,  19 
Nev.  359,  3  Am.  Rep.  888;  Schnitz- 
in3  v.  Bailey,  48  N.  J.  Eq.   409,  22 


Atl.  732;  Penrhyn  Slate  Co.  v.  Gran- 
ville Elect.  Light  &  Power  Co.,  84 
App.  Div.  92,  82  N.  Y.  Supp.  547; 
Amsterdam  Knitting  Co.  v.  Dean, 
162  N.  Y.  278,  56  N.  E.  757,  aff'g 
13  App.  Div.  42,  43  N.  Y.  Supp.  29; 
Lonsdale  Co.  v.  Woonsocket,  25  R.  I. 
428,  56  Atl.  448;  Kimbcrly  &  C. 
Co.  v.  Hewitt,  79  Wis.  334,  48  N. 
W.  373;  Ellis  v.  Clemens,  21  Ont. 
227.  See  opinion  in  City  of  Mans- 
field v.  Balliett,  65  Ohio  St.  45,  63 
N.  E.  86,  56  L.  R.  A.  628,  given  in 
full  "  Appendix  A,"  at  end  of  this 
chapter. 

68.  Murphey  v.  Wilmington,  5 
Del.  Ch.  281,  a  case,  however,  of  a 
bill  to  restrain  collection  of  an  as- 
sessment for  the  construction  of  a 
culvert. 

69.  State  v.  Wilson,  106  N.  C.  718, 
11  S.  E.  254,  a  case  also  as  to  the 
construction  of  an  ordinance  as  to 
placing  obstruction  in  waterway 
under  N.  C.  Code,  §  3820. 


428 


Waters — Continued.  §  313 

constructing  a  sewer  so  as  to  injure  private  property,  it  is  respon- 
sible for  the  nuisance  thereby  created.70  Nor  should  the  flow  of 
water  be  altered  or  interrupted  for  a  water  supply,  otherwise  it 
is  injuriously  affected  within  the  English  Public  Health  Act,  and 
this  rule  holds  even  though  no  sensible  damage  is  occasioned.71  So 
a  water  company  which  conveys  its  reservoir  and  appurtenant 
rights  to  a  city,  but  retains  under  a  reservation  in  the  deed,  cer- 
tain water  rights,  is  liable  for  the  nuisance  created  and  continued 
by  diverting  the  water  to  the  reservoir  whereby  it  is  diminished 
in  quantity  as  to  a  lower  riparian  owner  to  his  injury.72  It  may 
alsx)  constitute  both  a  public  and  a  private  nuisance  to  divert  the 
waters  of  a  navigable  stream.73 

§  313.   Overflowing,  flooding  or  casting  water  upon  land 

Generally. — If  water  which  would  not  naturally  flow  upon  land 
of  a  neighbor  is  wrongfully  made  to  flow  there,  it  creates  a  nuis- 
ance per  se.™  So  casting  water  upon  another's  land  without 
authority  or  right  so  to  do,  creates  a  nuisance  even  though  done  by 
a  public  body.75  And  even  though  a  city  has  power  to  condemn, 
it  cannot  without  condemnation  create  a  nuisance  by  flooding  pri- 
vate property  in  establishing  a  reservoir  and  water  works.7"  So  the 
obstruction  of  a  public  sewer  to  prevent  a  nuisance  is  not  author- 
ized where  the  act  results  in  overflowing  another's  land  and  dam- 
aging his  property.77  So  a  building  owned  by  a  municipality  can- 
not precipitate  the  rainwater  falling  upon  its  roof  upon  the  lands 
of  an  adjoining  proprietor.78  And  one  who  purchases  land  and  im- 
proves- the  same,  on  the  line  of  an  artificial  waterway,  constructed 

70.  Bloomington    v.     Costello,     65  Mich.  174,  9  Det.  Leg.  N.  302    91  N. 
111.  App.  407.  W.  156. 

71.  Roberts      v.      Gwyrfai      Dist.  76.  City  of  Ennis  v.  Gilder,  32  Tex. 
Council    (1899),   1  Ch.  583,  68   L.  J.  Civ.  App.   351,  74   S.  W    585 

Ch.  N.  S.  233;  Act   1875,  §  332.  77.  Munson   v.    Metz,    1    White    & 

72.  East     Jersey     Water     Co.     v.  W.  Civ.  Cas.  Ct    App.   (Tex  )     §  245 
Bigelow,  60  N.  J.  L.  201,  38  Atl.  631.  78.  Watson    v.    New    Milford,    72 

73.  Yolo  County  v.  City  of  Sacra-  Conn.  561,  564,  77  Am.  St.  Rep    345 
mento,  36  Cal.  193.  45  Atl.  167. 

74.  Learned  v.  Castle,  78  Cal.  454,  Casting    water    on    land.        See 
18  Pac.  872,  21  Pac.  11.  note,  10  L.  R.  A.  254. 

75.  Merritt    Twp.    v.     Harp,     131 

429 


§§  314,  315  Waters — Continued. 

by  a  municipal  corporation  to  perform  the  duty  that  it  is  under 
of  keeping  such  artificial  waterway  in  repair  and  condition  to  carry 
all  of  the  waters  that  may  flow  therein  from  usual  and  ordinary 
causes,  may  recover  damages  received  by  the  negligent  flood- 
ing of  his  lands  by  waters  from  such  artificial  waterway.79 

§  314.  Percolations — Subterranean  waters. — When  a  well  is 
supplied  with  water  which  percolates  through  the  earth  and  does 
not  flow  through  any  defined  channel,  although  the  owner  of  the 
well  is  not  entitled  to  the  water  until  it  actually  enters  his  well, 
the  occupier  of  adjoining  property  will  ba  restrained  from  using 
a  cesspool  therein  in  such  a  manner  as  to  pollute  the  water  coming 
through  his  property  and  supplying  the  well.80  This  rule  also  ap- 
plies to  a  privy.81  And  a  privy  which  by  percolations  pollutes  a 
stream  from  which  a  city's  water  supply  is  partly  supplied,  is  a 
nuisance  per  se.s2  So  a  nuisance  by  impurities  passing  through  sub- 
terranean streams,  may  also  exist.83  If  tunnels  or  excavations  are  so 
wrongfully  constructed  or  made  as  to  take  away  or  diminish  the 
flow  of  waters  in  a  stream  in  an  ascertainable  quantity  and  thereby 
divert  s>uch  waters  to  the  injury  of  another  and  an  invasion  of  his 
rights,  a  remedy  should  exist  therefor  and  be  granted  upon  a 
proper  showing.84 

§  315.  Surface  waters. — The  rule  as  to  surface  waters  and  its 
exceptions  and  qualifications  is  well  stated  in  a  Minnesota  case, 
where  it  is  declared  that :  In  respect  to  responsibility  for  the  dis- 
position of  surface  water,  the  common  law  rule  prevails  in  Min- 
nesota, and,  subject  to  the  reasonable  restriction,  applicable 
here  as  in  other  cases,  that  he  must  so  use  his  own  land  as  not 
to  injure  his  neighbor,  the  owner  of  the  lower  or  inferior  estate 

79.  Willson  v.  Boise  City,  6  Idaho,  83.  Rarick   v.    Smith,    17    Pa.   Co. 

391,  55  Pac.  887.  Ct.  627,  5  Pa.  Dist.  R.  530. 

SO.  Wormesley   v.    Church,    17    L.  As   to   oil    carried   by    subter- 

T.  190.  ranean   springs   see  Dillon  v.    Acme 

81.  Iliff    v.    School    Directors,    45  Oil  Co.,  2  N.  Y.  Supp.  289. 

111.  App.  419.     See  §  405,  herein.  84.  See    Montecito    Water    Co.    v. 

82.  Commonwealth  v.  Yost,  11  Pa.  Santa  Barbara,  144  Cal.  578,  77  Pac. 
Super.  Ct.  323.  1113;   Cohen   v.   La   Canada   Land   & 

Water  Co.,  142  Cal.  437,  76  Pac.  47. 

430 


Waters — Continued.  §  315 

may,  in  the  use  and  improvement  of  his  land,  obstruct  or  hinder 
the  natural  flow  of  surface  water  and  turn  the  same  back  upon  the 
lands  of  others,  without  liability  for  injuries  arising  from  such 
obstruction.  He  is  not  permitted  to  collect  it  in  a  stream  or  body, 
and  turn  it  upon  the  lands  of  others,  to  their  injury.  But  he  is  not 
bound  to  provide  drains  or  waterways  to  prevent  the  accumulation 
of  surface  water  upon  adjacent  lands',  the  natural  flow  of  which  is 
interrupted  by  changes  in  the  surface  of  his  own  lands  caused  by 
improvement's  thereon.  But  exceptional  circumstances  may  re- 
quire a  modification  of  this  rule,  as  in  the  case  of  ravines  in  which 
surface  water  is  gathered  into  streams  in  well-defined  channels. 
The  rule  is  not  modified,  however,  by  the  existence  of  depressions 
or  hollows  in  the  land  in  or  over,  which  mere  surface  drainage 
occurs  in  times  of  freshet;  but  a  modification  has  been  suggested 
in  cases  where,  from  the  natural  formation  of  the  ground,  large 
quantities  of  water,  from  heavy  rains  or  melting  snow,  are  forced 
into  a  channel,  and  flow  in  a  stream  through  a  narrow  valley  or 
ravine.  In  such  cases  it  may  frequently  be  found  to  be  as  reason- 
able and  proper  to  bridge  a  ravine  or  provide  a  way  of  escape  for 
the  water  through  an  embankment,  by  a  suitable  culvert,  as  in  the 
case  of  natural  streams ;  and  if  the  channel  is  well  defined  and 
worn  by  the  accustomed  flowage  of  water  therein,  it  assumes  the 
characteristics  of  a  watercourse,  and  circumstances  may  require 
that  similar  provision  be  made  for  it.  And  in  such  cases  the 
effect  of  the  culvert  would  not  be  to  interfere  with  the  natural 
flow  of  the  waters  beyond  the  roadbed  or  bridge,  while  under  other 
circumstances  the  result  migh  be  to  gather  the  surface  waters  into 
streams,  to  the  damage  of  lands  of  adjoining  owners.85  The  rule 
in  Iowa  as  to  the  right  of  interference  with  the  natural  flow  of 
surface  water  is,  that,  while  every  man  may  improve  his  own  land 
as  he  pleases,  he  must  do  so  in  a  careful  and  prudent  manner,  so 
as  to  occasion  no  unnecessary  inconvenience  or  damage  to  his  neigh- 
bor.   Accordingly,  where  the  defendant  railway  company  had  built 

85.  Rowe   v.    St.    Paul,    Minneapo-  of   surface    water.        See    note,   85 

lis  &  Manitoba  R.  Co.,  41  Minn.  386,  Am.  St.  Rep.  708,  715-735. 

387,  43  N.  W.   76,   16   Am.   St.   Rep.  Accellerating      or      increasing 

706.  flow  of  surface   water.     See  note, 

Diminishing  or  impeding  flow  85  Am.  St.  Rep.  708,  726-735. 

431 


§  315  Waters — Continued. 

an  embankment  across  the  plaintiff's  land  in  such  a  way  as  to  in- 
terfere with  the  flow  of  the  surface  water  therefrom,  and,  in  an 
action  for  damages  therefor,  there  was  evidence  tending  to  show 
that  the  defendant  could  have  relieved  the  plaintiff's  land  from  the 
surface  water  by  keeping  open  a  ditch  which  had  been  cut  along 
and  within  its  right  of  way  for  that  purpose,  held,  that  there  was 
no  error  in  refusing  to  order  a  verdict  for  the  defendant.86  It  is 
also  held  in  that  State  that  a  city  may  not  divert  surface  water 
from  its  natural  course  in  another  direction  so  as1  to  flow  on  a  lot 
owner's  land  through  a  drain  or  channel,  in  destructive  quanti- 
ties. So  where  a  city  lot  is  below  the  grade  of  an  adjoining  street, 
the  owner  cannot  recover  against  the  city  for  injury  caused  by  the 
overflow  of  the  lot  by  surface  water  turned  thereon  in  slightly 
increased  quantity  by  improvements  of  the  streets,  especially  if  the 
injury  would  not  have  occurred  had  the  lot  been  filled  up  to  the 
level  of  the  street,  though  recovery  is  ordinarily  denied  one  whose 
lot  is  below  grade,  he  may  recover  if  his  injury  would  have  re- 
sulted regardless  of  that  situation  of  the  lot,  but  where  the  injury 
to  a  lot  by  overflow  of  surface  water  is  caused  by  the  lot  being 
filled  up  by  the  owner  so  as  to  obstruct  the  natural  drainage,  and 
the  city,  by  improving  its  streets,  has  not  increased  the  amount 
of  the  flow  to  an  appreciable  extent,  the  owner  cannot  recover 
against  the  city  for  the  injury.87  In  Xorth  Carolina  it  is  held  that 
an  owner  of  land  is  obliged  to  receive  upon  the  same  the  surface 
water  which  falls  on  adjoining  higher  lands,  and  which  naturally 
flows  thereupon.  When  the  water  reaches  his  land  he  may  collect 
it  in  a  ditch  and  carry  it  to  a  proper  outlet,  but  he  cannot  raise 
any  dyke  or  barrier  whereby  it  will  be  interrupted  and  thrown 
back  on  the  lands  of  the  higher  owner ;  neither  can  the  higher 
owner  artificially  increase  the  natural  quantity  or  course  of  the 
surface  water,  by  collecting  it  in  a  ditch  and  discharging  it  upon 
the  servient  land,  in  a  different  manner  from  its  natural  dis- 
charge.88 

86.  Willitts    v.    Chicago,    Burling-  87.  Hoffman  v.  City  of  Muscatine, 

ton  &  Kansas  City  R.  Co.,  88  Iowa,       113  Iowa,  332,  85  N.  W.   17. 
281.  21  L.  R.  A.  608,  55  N.  W.  313.  88.  Dawson  v.  Durham   &  Brown, 

74  N.  C.  767. 


Waters — Continued.  §  316 

§  316.  Surface  waters — Instances. — A  nuisance  exists  where 
surface  water  is  diverted  from  its  natural  flow  by  an  embankment 
and  actual  damages  need  not  be  shown,89  and  if  there  is  a  con- 
tinuing nuisance  created  by  surface  water  being  discharged  upon 
adjacent  property  by  improvements  being  negligently  constructed 
by  a  municipality.90  So  a  private  nuisance  arising  from  the  dis- 
charge of  surface  water  on  a  street  opposite  plaintiff's  premises 
may  be  abated  at  suit  of  such  person.91  And  a  water  pipe  or  con- 
ductor which  throws  water  upon  the  walk  which  freezes  regularly 
in  the  winter  season  for  several  years  and  renders  the  walk  dan- 
gerous to  the  public,  is  a  nuisance.92  So  where  tracks  of  a  railroad 
are  raised  above  the  established  grade  of  a  sreet,  in  consequence  of 
which  puddles  of  water,  coming  from  rain  or  melting  snow,  are 
sometimes  formed  upon  the  sidewalk  and  remain  so  for  days, 
making  its  use  inconvenient,  such  facts  constitute  an  element  of 
damage  directly  attributable  to  the  wrongful  use  of  the  roadway, 
and  are  to  be  considered  in  determining  the  extent  of  injury  done 
to  plaintiff's  property  in  an  action  for  obstructing  a  highway 
and  depriving  an  abutting  proprietor  owning  the  fee  therein  of 
reasonable  access1  to  or  use  of  his  premises.93  So  a  municipality 
which  refuses  to  act  after  notice  given,  will  be  liable  where  it  has 
given  permission  to  construct  railroad  tracks,  and  such  tracks  ob- 
struct street  drainage  to  the  injury  of  abutting  land  owners,  even 
though  a  statutory  remedy  exists  against  the  railroad  company.94 
And  where  a  town  constructed  a  highway  in  such  a  manner  that 
water  worked  through  the  gutter  and  down  upon  plaintiff's  prem- 
ises to  his  serious  injury,  it  is  not  a  case  of  defective  highway,  but 
a  nuisance,  for  which  the  town  would  be  liable;  but  a  borough 
which  succeeds  to  the  ownership  of  such  highway  after  such  road 
is  constructed,  would  not  be  liable  without  knowledge  and  without 

89.  Tootle  v.  Clifton,   22  Ohio  St.  93.  MeKeon    v.    New    York,    New 
247,  10  Am.  Kep.  732.  Haven  &  Hartford  Rd.  Co.,  75  Conn. 

90.  New  Albany  v.  Lines,  21  Ind.  343,  61  L.  R.  A.  730,  53  Atl.  656. 
App.  380,  1  Rep'r  47,  51  N.  E.  346.  94.  Zanesville  v.  Fannan,  53   Ohio 

91.  Reinhart   v.    Sutton,    58    Kan.  St.  605,  42  N.  E.  703,  35  Ohio  L.  J. 
726    51  Pac    221.  51.     See  Rev.  Stat.  Ohio,   §   3283,  as 

92.  Isham    v.    Broderick    (Minn.),  to  statutory  remedy. 
85    N.    W.    224,    14    Am.    Neg.    Rep. 

112. 

433 


§  316  Waters — Continued. 

ntionally  continuing  the  nuisance,  although  the  damage  was 
■  after  power  with  relation  to  such  highways  of  the  town  was 
conferred  upon  the  borough.90  Liability  for  damages  also  exists 
where  an  old  drain  lawfully  constructed  and  controlled,  to  some 
extent  by  a  municipality  is  closed  up  so  that  sewage  and  surface 
water  escapes  during  a  heavy  rainfall  which  ought  reasonably  to 
have  been  expected  to  occur.96  ^Yhere  the  statute  so  authorizes  a 
local  authority  when  draining  it's  district  to  make  such  sewers  as 
are  necessary  to  accomplish  such  drainage,  it  may  carry  such 
sewers  into,  through  or  under  any  lands  within  their  district  pro- 
vided that  the  water  so  conveyed  is  as  specified  in  the  statutory 
authorization  "  freed  from  all  excrementitious  or  other  foul  or 
noxious  matter  such  as  would  affect  or  deteriorate  the  purity  and 
quality  of  the  water  in  such  stream  or  water  course."  But  sur- 
face water  charged  with  sand  and  silt  is  not  within  such  proviso 
if  the  stream  or  water  course  is  naturally  charged  therewith.97 
Again,  while  the  owner  of  land  through  which  there  flows  a  stream 
of  water  may  not  divert  the  same  so  as  to  interfere  with  the  enjoy- 
ment thereof  by  the  land  owners  upon  the  stream  above  and  below, 
still  this'  rule  does  not  apply  to  the  water  falling  upon  land  as  by 
rain  or  snow,  and  a  municipal  corporation  is  not  liable  to  an  action 
for  damages,  because  by  its  streets,  roofs  and  drains,  it  causes 
the  water  from  rains  and  other  water  produced  upon  its  surface, 
to  flow  upon  adjoining  lands  which  are  the  natural  outlets  of  such 
water,  even  though  such  water  is,  by  these  means,  concentrated 
into  a  stream  and  would  otherwise  have  flowed  over  said  land 
in  many  small  streams.98  So  in  a  suit  for  damages,  where  a  count 
in  the  petition  alleges  injury  resulting  to  plaintiff  in  consequence 
of  foul  and  impure  matter  being  allowed  by  defendant  to  accumu- 
late on  his  premises  in  such  manner  as  to  be  washed  by  rains  on 
land  of  the  plaintiff,  it  is  not  error  for  the  judge  to  instruct  the 
jury  that  there  can  be  no  recovery  on  this  ground  if  such  offensive 

95.  Morse  v.  Fair  Haven  East,  48  2  Ch.  291,  aff'g  61  J.  P.  472;  Public 
Conn.  220.  Health  Act,   1875    (38  &  39  Vict.  C. 

96.  Schroeder  v.  Baraboo,  93  Wis.  55),  §§  15,  16,  17,  308;  Private  Street 
95,  67  N.  W.  27.  Works  Act,  1892. 

97.  Durrant  v.   Branksome  Urban  98.  Phinizy  v.  City  Council  of  Au- 
Council,   46   W.   R.    (C.   A.)    134,   66  gusta,  47   Ga.   260. 

J..  J.   Ch.   653,  76   L.  T.   739    (1897), 

434 


Waters — Continued.  §  310 

matter  was  accumulated  by  defendant's  tenants  on  that  portion  of 
the  premises  rented  from  him  and  over  which  he  had  no  control,  it 
not  appearing  that  the  nuisance  complained  of  on  the  premises  of 
the  tenants  existed  at  the  time  they  were  rented,  nor  that  the  ten- 
ants were  licensed  by  the  landlord  to  erect  or  maintain  the  nuis- 
ance."    But  a  town  will  be  enjoined  against  constructing  a  drain 
for  the  purpose  of  discharging  surface  water  of  a  street  into  a 
deep  cut  or  excavation  made  by  a  railroad  across  the  principal 
street  of  a  densely  populated  village,  the  street  crossing  the  rail- 
road cut  by  a  bridge,  it  appearing  that  the  side  walls  of  this  exca- 
vation and  the   railroad   stations   and  property  of  the  company 
Avould  be  injured,  that  the  company  was  authorized  to  construct 
their  road  as  they  had  done,  and  that  although  by  reason  of  such 
manner  of  construction  a  drain  for  the  street  was  necessary,  yet  one 
could  be  so  constructed  as  not  to  injure  the  railroad  at  a  greater 
but  not  unreasonable  expanse.100     In  an  English  case  a  canal  com- 
pany had  a  statutory  power  to  supply  it  with  water  out  of  such 
"  brooks,  streams  and  water  courses  as  should  be  found  within  a 
certain  distance,"  it  was  held  that  it  would  be  difficult  to  hold,  that 
the  mere  surface  water  of  a  road,  not  arising  from  any  spring  or 
natural  certain  supply,  could  fall  within  the  act,  so  far  and  to  such 
an  extent,  as  to  exclude  a  local  board  of  health,  under  the  Public 
Health  Act,  from  making  a  system  of  drainage  essential  to  the  dis- 
trict,   which,    offending    against    the    rights    of    no    one    in    any 
other  particular,  merely  allowed  to  flow  through  gratings  into  the 
sewer  the  water  collected  on  a  public  road  from  rain  and  from 
the  overflowing  of  the  surplus  of  the  neighboring  houses,  which 
water  had  theretofore  flowed  down  an  open  gutter  into  a  canal.10 
The  fact,  however,  that  a  city  has  macadamized  the  surface  of  a 
street  and  constructed  catch-basins  and  conduits,  whereby  the  flow 
of  water  draining  from  the  street  is  accelerated,  does  not  render  it 
liable  for  damages  from  the  overflowing  of  a  stream  into  which 
the  drainage  water  empties,  unless  the  drainage  is  increased  to  an 

99.  Edgar  v.  Walker,  106  Ga.  455.  101.  Manchester-Sheffield  &•  Lan- 
32  S.  E.  582.  See  Brown  v.  McAllis-  cashire  Ry.  Co.  v.  Worktop  Board  of 
ter,  39  Cal.  573.                                               Health,   23   Beav.   178,  5  W.   R.   279. 

100.  Danbury  &   Norwalk  Rd.  Co.       26  L.  J.  Ch.  345,  3  Jur.  U.  S.  304. 
v.  Town  of  Norwalk,  37  Conn.  109. 

435 


§  "» 1 7  Waters — Continued. 

extant  beyond  that  which  could  be  accommodated  by  the  water 
course  in  its  natural  condition.102  Again,  on  the  trial  of  a  com- 
plaint for  damages  growing  out  of  alleged  negligent  conduct  of 
defendant  in  closing  the  natural  course  of  surface  water  on  one 
side  of  plaintiff's'  lot,  and  in  not  providing  sufficient  drainage  to 
carry  off  such  water,  thus  causing  it  to  flood  plaintiff's  land  during 
rainy  seasons,  it  was  not  error  for  the  court  to  charge  the  jury 
that  "if  the  defendant  used  ordinary  care  in  constructing  the 
drain  pipe,  and  the  drainage,  if  any,  was  caused  by  plaintiff's 
negligence,  then  the  plaintiff  cannot  recover."  There  was  suffi- 
cient evidence  in  this  case  to  authorize  the  submission  of  this  issue 
to  the  jury.103 

§317.  Artificial  erections  —  Embankments,  etc.  —  Railroad 
erections. — As  we  have  elsewhere  stated  a  person  should  not  be 
materially  interfered  with  in  the  reasonable  enjoyment  of  his  land, 
and  if  such  interference  is  occasioned  by  filth  or  noxious  things 
produced  on  another's  land,  the  person  so  injured  has  an  action. 
This  principle  applies  to  preclude  anyone  without  liability  there- 
for, at  the  suit  of  the  injured  party,  from  causing,  by  an  artificial 
erection  on  his  own  land,  water,  even  though  only  arising  from 
natural  rainfall  to  pass  into  his  neighbor's  land.  This  is,  however, 
also  subject  to  the  principle  that  the  owner  of  land  holds  his  right 
to  its  enjoyment  subject  to  any  annoyance  arising  from  the  natural 
user  by  his  neighbor  of  his  land,  as  in  the  case  of  an  adjoining 
mine  owner.104     In  a  Massachusetts  case,  county  commissioners 

102.  Syllabus  to  Smith  v.  City  of  monwealth,   63  Ky.   95;      Roberts  v. 

Auburn,  88  App.  Div.  396,   84  N.   Y.  Harrison,  101  Ga.  773,  28  S.  E.  995; 

Supp.  725.  Simpson  v.  Stillwater  Water  Co.,  62 

1,03.  Edgar    v.    Walker,     106    Ga.  Minn.    444,    64    N.    W.    1144;  Rych- 

454,  32  S.  E.  582.  lieki  v.  St.  Louis,  115  Mo.  662,  22  S. 

When  no  nuisance  or  liability  W.  908 ;   Wenzlick  v.  McCotter,  87  N. 

exists    from    surface    waters.       See,  Y.    122,   41   Am.   Rep.   358;   Lewis  v. 

also,    Brown    v.    McAllister,    39    Cal.  Alexander,  21  Ont.  App.  613. 

573 ;   Eaton   v.   People,   30   Colo.   345,  As    to    structural    convenience 

70  Pac.   426;   Walley  v.  Platte  &   D.  under  English  statute  38  &  39  Vict. 

Ditch  Co.,  15  Colo.  579,  26  Pac.  129;  Chap.   55.   §   94,   see   Kinson    Pottery 

Livezey  v.  Schmidt,   16  Ky.  Law  R.  Co.  v.  Poole  (1899),  2  Q.  B.  41. 

596,   29   S.    W.    25:   Barring  v.   Com-  104.  Hardman  v.  N.  E.  Ry.,  47  L. 

436 


Waters — Continued.  §  317 

having  laid  out  a  highway  through  a  town  and  across  two  channels 
of  a  stream,  ordered  the  town  to  make  an  embankment,  several 
rods  from  the  highway,  which  should  turn  all  the  waters  of  the 
stream  into  one  of  its  channels  and  prevent  the  necessity  of  mak- 
ing more  than  one  bridge  in  the  highway.  The  town  passed  no 
vote  and  did  not  act  in  the  matter;  but  the  selectmen  caused  the 
embankment  to  be  made,  and  paid  for  making  it,  by  an  order  on 
the  town  treasurer.  It  was  held  that  the  towm  was  not  liable  to  an 
action  by  the  owner  of  land  which  was  flooded  and  injured  in  con- 
sequence of  the  making  of  the  embankment.105  In  the  construction 
and  maintenance  of  railroads  common  prudence  requires  that  em- 
ployment of  at  least  ordinary  engineering  knowledge  and  skill  to 
the  end  of  avoiding  injury  to  property,  which  will  probably  come 
from  the  obstruction  of  natural  streams  and  waterways.106  And 
where  a  railroad  constructs  and  maintains  embankments  or  its 
roadbed  in  such  a  manner  that  it  obstructs,  dams  up,  diverts  and 
causes  water  to  overflow  another's  land  to  his  injury  and  damage, 
it  may  be  liable  as  for  a  nuisance.  This  rule  applies  to  the  obstruc- 
tion of  a  living  stream  of  water  which  renders  land  boggy  and 
marshy  and  which  also  in  times  of  freshet  affects  another  stream 
on  such  land  turning  its  course  and  injuring  the  soil.107  The  rule 
also  applies  to  a  case  where  waters  are  permanently  dammed  up 
by  a  railroad  and  overflow  a  farm  to  the  injury  of  a  reversioner's 
interest  ;108  to  an  embankment  constructed  of  material  which  washes 
out  and  is  deposited  on  another's  land  and  to  an  insufficient  and 
inadequate  culvert;109  to  an  embankment  which  has  not  adequate 
openings  to  cany  off  waters  reasonably  to  be  expected  ;110  to  a  road- 
bed so  constructed  that  water  is  obstructed  within  the  limits  of  a 
city  or  town  and  becomes  stagnant  and  offensive.111     So  a  structure 

J.  P.   368,  3  C.  P.  D.   108,  38   L.   T.  Horan,   131   111.   288,   41  Am.  &  Eng. 

339,  26  W.  R.  489,  C.  A.    See  Turner  R.  Cas.  13,  23  N.  E.  621,  aff'g  30  111. 

v.  Mirfield,  34  Beav.  390.  App.  552. 

105.  Anthony   v.   The   Inhabitants  109.  Wabash    R.    Co.    v.    Sanders, 
of  Adams,  1  Mete.    (42  Mass.)   284.  58   111.  App.  213. 

106.  Southern    Ry.    Co.    v.    Piatt,  110.  Missouri   P.   R.   Co.   v.   Web- 
131  Ala.  318,  31  So.  33.  ster,  3  Kan.  App.  106,  42  Pac.  845. 

107.  Smith    v.   Philadelphia   &   R.  111.  Rosenthal  v.  Taylor,  B.  &  H. 
R.  Co.,  57  Fed.  903.  R.  Co.,  79  Tex.  325,  15  S.  W.  268. 

108.  Kankakee    &    S.    R.    Co.    v. 

437 


§317  Waters — Continued. 

which  dams'  up  a  waterway  and  causes  the  water  to  spread  danger- 
ously from  its  natural  course,  may  amount  to  a  nuisance,  and  the 
maintenance,  as  well  as  the  erection  of  a  nuisance,  with  knowledge 
of  its  harmful  character,  may  create  a  liability  for  resultant  in- 
juries.112 So  a  railroad  embankment  within  the  limits  of  a  muni- 
cipality may  cause  a  public  nuisance.113  So  a  railroad  embank- 
ment with  an  insufficient  culvert  whereby  waters  overflow  another's 
land,  such  embankment  being  at  the  intersection  of  a  city  street 
and  an  alley,  is  a  public  nuisance.114  And  where  a  rainfall,  if  any 
great  quantity  cannot  be  carried  away  by  a  culvert  under  a  rail- 
road embankment,  such  culvert  being  for  the  flowage  of  water  in  its 
natural  course,  there  exists  a  continuing  injury  or  nuisance.115 
While  those  engaged  in  such  undertakings  as  constructing  and 
maintaining  railroads  are  not  bound  to  provide  against  floods,  of 
which  the  usual  course  of  nature  affords  no  premonition,  yet  they 
are  bound  to  use  ordinary  care  to  build  so  as  not  to  obstruct  to  the 
damage  of  others,  rainfall  waters  such  as  may  reasonably  be  ex- 
pected whether  they  are  likely  to  be  of  frequent  or  of  rare  occur- 
rence. Though  a  defendant  has  acquired  the  railroad  after  an  em- 
bankment complained  of  was  built,  its  character  and  that  of  the 
stream  and  surrounding  country  together  with  common  knowledge 
with  which  it  was  legally  charged  concerning  rainfalls  to  which  the 
country  was  subject,  may  have  been  sufficient  to  show  it  had  notice 
of  the  consequences  which  would  naturally  follow  from  continuing 
the  existing  conditions.116  But  where  a  railroad  bridge  and  its  ap- 
proaches are  situate  upon  land  conveyed  to  a  railroad  company  for 
its  right  of  way,  it  must  be  held  to  have  been  conveyed  to  enable 
the  purchaser  to  use  it  as  it  then  was,  and  an  action  does  not  lie 
as  for  nuisance  where,  owing  to  the  method  of  construction  of  the 
bridge,  there  is  caused  an  accumulation  of  flood  wood,  debris  and 
gravel  under  said  bridge  causing  an  overflow  on  the  grantor's  land. 
The  principle  of  such  a  case  seems  to  be  that  a  person  having <con- 

112.  Southern  Ry.  Co.  v.  Piatt,  St.  &  L.  R.  Co.,  28  Ind.  App.  457,  63 
131  Ala.  318,  31  So.  33.  N.  E.  233. 

113.  Baltzeger  v.  Carolina  Mid-  115.  Ecton  v.  Lexington  &  E.  R. 
land  R.  Co.,  54  S.  C.  242,  32  S.  E.  Co.,  21  Ky.  L.  Rep.  921,  53  S.  W. 
358,  71  Am.  St.  Rep.  789,  14  Am.  &  523. 

Eng.  R.  Cas.  N.  S.  845.  116.  Southern    Ry.    Co.    v.    Piatt, 

114.  Kelley  v.  Pittsburgh,  C.  C.  &       131  Ala.  318,  31  So.  33. 

438 


Waters — Continued.  §  318 

veyed  the  land  with  the  structure  for  the  purpose  of  enabling  the 
purchaser  to  continue  its  use  as  he  was  then  using  it,  he  cannot  de- 
prive the  purchaser  of  the  benefit  by  claiming  that  it  constitutes 
a  private  nuisance.117  If  the  volume  of  water  carried  by  a  railroad 
culvert  is  not  increased,  the  company  will  not  be  liable  for  a  nuis- 
ance arising  from  noxious  odors,  injurious  to  health  and  liable  to 
produce  disease,  arising  from  filthy  deposits1  of  decaying  matter 
from  the  flowing  of  polluted  water  from  the  railroad's  right  of 
way  onto  another's  land.118  It  is  also  held,  notwithstanding  the 
preceding  decisions,  that  if  a  railroad  embankment  is  constructed 
under  proper  authority,  no  liabiliy  as  for  a  public  or  private  nuis- 
ance exists  even  though  the  passage  of  water  of  running  streams 
is  not  adequately  provided  for.119 

§  318.  Mills,  mill  races  and  streams,  mill  sites  and  mill  own- 
ers— Rebuilding  mill. — A  flouring  mill  in  a  city  is  not  per  se  a 
nuisance.120  And  in  order  to  constitute  a  mill  a  nuisance,  as 
erected  upon  tide  waters,  it  should  appear  to  stand  within  the  flow 
of  common  and  ordinary  tides.121  And  although  a  mill  race  may 
obstruct  a  street,  yet  it  is  not  a  nuisance  per  se  where  the  street  was 
plotted  in  a  city  addition  subsequent  to  the  construction  of  the 
race.122  But  a  stream  across  a  highway  for  the  use  of  a  mill  is 
a  nuisance,  where  a  bridge  necessary  for  protection  of  the  public  is 
out  of  repair  and  unsafe,  to  the  extent  that  the  cost  of  repairs  made 
to  the  bridge  by  a  town  may  be  recovered  back  from  the  one  who 
maintains  the  stream.123  And  where  one  owns  a  mill  site  on  land 
over  which  a  railroad  has  a  right  of  way,  he  may  hold  the  company 
liable  as  for  a  private  nuisance  where  it,  without  necessity  there- 

117.  McDonald  v.  Southern  Cal.  pendix  A,"  at  end  of  this  chapter. 
R.  Co.,  101  Cal.  206,  35  Pac.  643,  646.       See,  also,  2  Shearman  &  Redfield  on 

118.  Brimberry  v.  Savannah,  F.  &       Neg.    (5th  ed.)   §§  728,  731. 

W.  R.  Co.,  78  Ga.  641,  3  S.  E.  274.  120.  Green  v.  Lake,  54  Miss.  540, 

119.  Ridley   v.   Seaboard  &  R.   R.       28  Am.  Rep.  378. 

Co.,  118  N.  C.   996,  24  S.  E.  730,  32  121.  Simpson  v.  Seavey,  8  Greenlf. 

L.    R.    A.    708.     But,    see,    as    to   the  (Me.)    138,  22  Am.  Dec.   228. 

governing  principles,  §§  278,  289-291  122.  Denver    v.    Mullen,    7    Colo, 

herein,  and  City  of  Mansfield  v.  Bal-  345,  3  Pac.  693. 

liett,   65  Ohio  St.  451,  63   N.   E.   86,  123.  Clay  v.  Hart,  55  N.  Y.  Supp, 

58  L.  R.  A.  628,  given  in  full  "  Ap-  43,  25  Misc.  110. 

439 


§  319  Waters — Continued. 

for,  deposits  in  the  stream  stone  and  other  refuse  which  raises 
therein  a  bar  or  obstruction  to  his  injury.124  While  a  mill  owner 
has  the  right  in  the  ordinary  use  of  his  mill  to  discharge  in  a 
reasonable  manner  waste,  etc.,  therefrom  into  stream,  yet  he  cannot 
abuse  this  right  and  unnecessarily  and  wantonly  discharge  such 
waste  and  refuse  in  such  an  unreasonable  manner,  having  regard 
to  his  beneficial  use  of  the  water,  as  to  injure  inferior  heritors.120 
And  a  substantially  like  principle  would  preclude  such  mill  owner 
from  depositing  refuse  without  care  or  oversight  in  such  a  manner 
that  in  times  of  freshet  it  is  carried  down  upon  plaintiff's  lands 
for  the  owner  is  bound  to  know  that  freshets  are  liable  to  occur.126 
Where  a  mill  of  public  utility  existed  at  the  time  of  purchase  by 
one  claiming  that  its  rebuilding  will  injure  the  family's  health, 
and  it  is  being  rebuilt  on  the  same  old  site,  equity  will  not  inter- 
fere, the  plaintiff  alone  claiming  injury.127 

§  319.  Dams. — A  dam  across  a  stream  may  be  either  a  public 
or  private  nuisance.128  So  where  the  owner  of  one  bank  of  an  un- 
navigable  river  erects  a  dam  across  it  in  such  a  manner  as  to  injure 
other  owners  of  the  banks  and  tenants  in  common  of  the  stream,  it 
constitutes  a  private  and  not  a  public  nuisance.129  And  it  may  be 
a  nuisance  per  se  to  obstruct  the  waters  of  a  natural  stream  by  a 
dam  even  though  it  is  erected  for  a  water  supply.130  But  if  the  act 
of  maintaining  a  dam  has  not  essentially  increased  the  nuisance 
and  it  is  no  greater  nor  of  any  different  character  from  what  would 
have  existed  independent  of  defendant's  act,  he  is  not  punishable 
therefor.131  Where  a  mill  and  mill  seat  are  conveyed  by  deed  as 
such,  by  metes  and  bounds,  the  dam  will  pass  as  appurtenant  to  the 
mill  seat,  though  it  is  not  included  within  the  metes  and  bounds 
given,  and  does  not  abut  on  the  land  described.   So  in  a  prosecution 

124.  Watts  v.  Norfolk  &  W.  R.  1,28.  Richards  v.  Daugherty,  133 
Co.,   39   W.  Va.    196,   19    S.    E.   521,      Ala.  569,  31  So.  934. 

23  L.  R.  A.  674,  57  Am.  &  Eng.  R.  129.  Moffett     v.     Brewer,     1     G. 

Cas.  694.  Greene    (Iowa),   348. 

125.  Jacobs  v.  Allard,  42  Vt.  303,  130.  Fox  v.  Fostoria,  8  Ohio  C. 
1  Am.  Rep.  331.  Dec.  39,  14  Ohio  C.  C.  471. 

126.  Washburn  v.  Gilman,  64  Me.  131.  Beach  v.  People,  11  Mich. 
163,  18  Am.  Rep.   146.  106. 

127.  Atty.-Genl.,    Eason    v.     Per- 
kins, 17  U.  C.  38. 

440 


Waters — Continued.  §  320 

for  a  nuisance,  in  the  erection  and  continuance  of  a  mill  dam  the 
defendant  justified  under  an  act  of  the  legislature  authorizing  his 
grantor  to  construct  the  dam.  The  deeds  given  in  evidence  to  show 
the  defendant's  title  described  only  the  mill  seat  by  metes  and 
bounds,  and  to  show  his  title  to  the  dam,  the  defendant  offered  to 
prove  that  the  dam  was  built  by  the  person  to  whom  the  legislative 
grant  was  given,  and  that  he  and  his  grantees  had  ever  since  been 
in  possession  under  a  claim  of  right  from  him.  It  was  held  that 
the  evidence  offered  was  competent,  and  was  sufficient  evidence  of 
title  against  all  other  persons  except  the  owners  of  the  banks.132 

§  320.  Dams  continued. — If  an  individual  erects1  a  mill  dam 
which  occasions  sickness,  and  disease  he  is  responsible  for  the  con- 
sequences and  it  is  immaterial  whether  the  injury  is  a  public  or 
private  nuisance.133  So  a  mill  dam  across  an  unnavigable  stream  is 
a  nuisance  if  erected  or  maintained  in  such  a  manner  as  to  injure 
the  health  or  comfort  of  others.134  A  dam  is  also  a  nuisance  where 
it  endangers  or  impairs  health  or  injures  or  depreciates  property 
by  causing  waters  to  become  stagnant  in  pools  or  otherwise,  or  to 
accumulate  filth,  refuse  and  other  deleterious  and  noxious  matter, 
so  that  the  air  is  infected,  tainted  and  corrupted  with  unwholesome, 
noxious  vapors  and  poisonous  effluvia.130  And  this  rule  applies  to 
a  case  where  such  filth-impregnated  water  flows  into  cellar  of  a 
building  on  the  banks  of  the  stream  obstructed  by  a  dam.136 

132.  Neaderhouser  v.  The  State,  N.  C.  246,  20  Pitts.  L.  J.  N.  S.  345, 
28  Ind.  (28  Harr.)  257,  258.  6  L.  R.   A.  737;   State  v.   Rankin,   3 

133.  Story  v.  Hammond,  4  Ohio,  S.  C.  (3  Rich.)  438,  16  Am.  Rep. 
376.  737;      Rhodes  v.  Whitehead,  27   Tex. 

134.  State  v.  Close,  35  Iowa,  570.  304,  84  Am.  Dec.  631 ;  Miller  v.  True- 

135.  People  v.  Pelton,  36  App.  head,  4  Leigh  (Va.),  569;  Douglass 
Div.  450,  55  N.  Y.  Supp.  815,  aff'd  v.  State,  4  Wis.  387.  Examine 
159  N.  Y.  App.  15,  53  N.  E.  1129;  Leonard  v.  Spencer,  108  N.  Y.  338, 
Adams  v.  Popham,  76  N.  Y.  410;  13  N.  Y.  St.  R.  653,  28  W.  D.  368, 
City  of  New  Castle  v.  Raney,  6  Pa.  15  N.  E.  397,  11  Cent.  R.  98,  aff'g 
Co.     Ct.     R.     87,     rev'd    on     another  34  Hun,  341. 

point.       See     id.     130     Pa.     546,     18  136.  Masonic     Temple     Assoc,     v. 

Atl.  1066,  27  Am.  &  Eng.  Corp.  Cas.       Banks,  94  Va.  695,  27  S.  E.  490. 
566,  47   Phila.  Leg.   Int.  416,  25  W. 


441 


§  321  Waters — Continued. 

§  321.   Dams  continued — Back  water. — As  we  have  elsewhere 
stated  every  proprietor  of  the  soil  through  which  a  stream  passes 
has  a  right  to  have  it  run  in  its  natural  current  without  diminution 
or  obstruction.     The  difference  of  level  between  the  surface  where 
the  stream  first  touches  his  land,  and  the  surface  where  it  leaves  it, 
is  the  privilege  of  water  power,  which  the  proprietor  may  use  and 
appropriate  in  any  way  desired  by  him  for  his  advantage,  without 
interruption  on  the  part  of  others,  and  any  interference  on  the  part 
of  others  will  subject  the  wrongdoer  to  all  the  consequences  im- 
posed by  law  thereon.    An  inferior  proprietor  may  not,  by  any  dam 
however  useful  to  him,  throw  back  the  wrater  in  any  appreciable 
degree,  however  small,  upon  the  proprietor  above  him,  and  if  he  do 
s'o  he  would  be  guilty  of  an  actionable  nuisance,  for  which  a  rem- 
edy is  provided.137     So  it  constitutes  a  nuisance  which  will  be 
abated  where  a  dam  is  erected  by  a  lower  mill  owner  so  that  water 
is  backed  upon  a  prior  upper  mill  owner's  wheel.138     And  in  an 
action  for  damages  for  obstructing  a  stream  of  water  by  means  of 
a  dam,  by  which  the  water  was  backed  upon  the  plaintiff's  mill 
wheel  and  caused  to  overflow  his  land,  evidence  of  an  obstruction 
at  a  different  place,  and  different  form  from  that  alleged,  is  inad- 
missible.139   Where  the  plaintiff  and  defendants  were  riparian  pro- 
prietors, and  the  defendants  erected  a  mill  dam  at  a  place  where 
they  owned  the  land  on  both  sides  of  the  stream,  but  caused  the 
water  to  flow  back  in  the  channel  of  the  stream  ten  or  eleven  inches, 
whereby  a  valuable  mill-shoal  of  the  plaintiff  was  drowned  to  that 
extent ;  it  was  held  that  the  throwing  back  the  water  in  the  channel 
of  the  creek  by  the  defendants,  was  an  invasion  of  the  plaintiff's 
right  of  property,  and  that  he  was  entitled  to  maintain  an  action 
for  the  protection  of  that  right,  and  to  recover  nominal  damages ; 
although  the  water  was  not  thrown  out  of  the  banks  of  the  creek, 
and  no  perceptible  damage  could  be  shown.  It  was  also  decided  that 
the  plaintiff  was  entitled  to  show  to  what  extent  he  had  been  dam- 
nified in  consequence  of  the  back  water,  although  the  same  was  not 
thrown  out  of  the  natural  banks  of  the  stream.140     The  right  of  a 

137.  (Liles)    Lyles  v.   Cawthorne,      Bergen  v.  Van  Bergen,  3  Johns.  Ch. 
78  Miss.  559,  564,  29  So.  834.  (N.  Y.)   282. 

138.  Stumbo    v.    Seeley,    23    Neb.  139.  Pickett    v.    Condon,    18    Md. 
212     30    N.   W.    487.     Examine   Van      412. 

140.  Frederick  y.  Cook    4  Ga.  241. 
442 


Waters — Continued.  §  u^ 

riparian  owner  to  stop  the  flow  of  water  upon  bis  own  land  and 
thereby  cause  it  to  flow  back  upon  the  lands  of  the  proprietor  above 
him,  is  not  a  right  incident  to  the  ownership  of  the  soil,  but  an 
easement  which  can  only  be  acquired  by  grant,  or  by  an  adverse 
possession  so  long  continued  as  to  raise  a  legal  presumption  oi  a 
grant.141 

8   322    Dams  continued— Overflow,  flooding.— If  a  dam  ob- 
structs the  natural  flow  of  water  so  that  the  necessary  and  inevit- 
able consequence  of  such  obstruction  is  the  inundation  of  all  the 
adjoining   lands,   the   surface   of  which   is  no   higher   than    the 
obstruction,  and  vegetation  and  fences  are  injured  thereby  and  the 
land  rendered  almost  valueless,  such  dam  will  be  abated  and  per- 
petually enjoined.142     So  facts  are  stated  sufficient  to  constitute  a 
cause  of  action  where  it  is  averred  in  substance  that  certain  waters 
arising  in  spring,  come  together  upon  the  defendants  land  and 
that  their  natural  outlet  is  in  a  depression  or  pond  on  said  land; 
that  none  of  the  waters  flow  naturally  upon  plaintiff  s  land  except 
in  time  of  overflow;  that  the  defendant  had,  by  building  a  dam 
diverted  these  waters,  prevented  them  from  following  their  natural 
course  over  'his   own  land,   and  so  caused  them  to  leave  their 
natural  course  and  run  upon  plaintiff's  land,  rendering  the  same 
unfit  for  cultivation;  that  defendants  are  threatening  to  continue 
the  dam  and  divert  the  water  and  also  asking  for  damages.     The 
complaint  designated  the  stream  of  water  as  a  "  water  course. 
A  railroad  company  is  also  liable  where  it  persistently  continues 
the  maintenance  of  a  dam  over  a  stream  on  land  of  another  so  as  to 
prevent  its  cultivation.144    And  a  dump  or  dam  which  obstructs  the 
natural  flow  of  water  and  causes  it  to  overflow  another  s  premises 
to  his  injury,  is  a  ground  for  damages.145    So  the  flooding  of  a  pub- 

141.  Hahn  &  Harris  v.  Thornberry,  143.  Maxwell    v     Shirts     27    Ind. 

7    Bush     (Ky.),    403.    40G,    citing    2       App.  529,  87  Am.  St.  Rep.  268,  61  N. 

^ir^T^*"      "^Southern    Ry.    Co.    v.    Coo,, 
St  «  section-text  for  note       U7  Ca.  286,  «B.  B.  «.      &    ^ 

"LrHahnTnarris    v.    Thorn-       Haute  Hd.  v.  Eilis,  58  111.  App.  110. 
berry.  7  Bush   (Ky.),  403. 

443 


§  323  Waters — Continued. 

lie  highway  and  the  formation  of  ice  gorges  therein  on  several 
occasions  during  each  year,  constitutes  such  an  injury  as  to  war- 
rant the  court  to  abate  as  a  nuisance  a  mill  dam  situate  in  a  city 
which  is  the  cause  of  such  injury.146  If,  however,  the  dam  built 
causes  an  injury  by  overflow  and  such  nuisance  is  of  a  permanent 
character,  only  one  action  lies  and  that  against  the  party  causing 
the  injury  and  not  against  his  grantee  who  has  done  no  act  com- 
plained of  except  to  maintain  the  dam  as  purchased.147  The  right 
given  by  a  general  mill  dam  law,  though  it  is  a  valid  act,  to  erect 
a  mill  dam  and  liow  the  land  of  others,  is  no  defense  to  an  indict- 
ment, if  the  dam  creates  a  public  nuisance;  such  an  act,  though  it 
gives  a  right  to  build  a  dam  and  flow  water  upon  the  lands  of 
others,   does  not  give  a  license  to  create  and  continue  a  public 


§  323.  Dams  continued — Overflow  and  flooding — Evidence. — 
The  existence  of  a  nuisance  caused  by  a  dam  may,  it  is  held,  be 
proven  by  a  judgment  at  law  for  damages  for  flooding  land.149  If 
land  is  overflowed  by  back  water  caused  by  the  erection  of  a  dam, 
it  is  competenl  to  show  by  export  testimony  the  effect  of  obstruc- 
tions in  causing  back  water.  Evidence  to  show  that  there  are  cer- 
tain streams  and  springs  in  the  neighborhood  is  also  admissible  as 
tending  to  snow  directly,  although  not  conclusively,  that  the  high 
water  and  overflow  were  not  caused  by  the  dam  but  by  natural 
causes.1,0  And  in  an  action  for  directing  a  watercourse  by  the 
con  traction  of  n  dam  where  one  of  tbs  questions  to  be  determined 
i-  the  course  and  terminus  of  the  watercourse,  it  is  not  error  to 
permit  a  witness  acquainted  with  the  Location  bo  testify  as  to  his 
ob  ervations  of  the  course  of  the  water  a  number  of  years  before 

146.  City  of  N'cw  Castle  v.  Etaney,  70  [owa,  143.  See  chapters  herein 
0      Pa,     Co.      f't.      it.      87,      rev'd      on  remedies. 

on    another    point,    see   id.    130    Pa.  148.  Luning    v.     State,     2     Pin. 

546,  20    Pitts.   L.   J.    N.   S.   345,   47  (Wis.)  215,  I  Chand.  (Wis.)   178,  52 

Phila  Leg    [nt.  415,  0  '.-.  B.  A.  737,  Am.  Dec.  153. 

25   W.   N.   C.   240,  il    Am.   &   Eng.  140.  Harmon     v.     Carter     (Tenn. 

Corp.  '  a     500    18  Atl.  1006.  Ch.),  59  8.  W.  750. 

147.  Bizet  v.  Ottumwa  Power  Co.,  150.  Grigsby  v.  Clear  Lake  Water 

Co.,  40  Cal.  396. 


444 


Waters — Contlnukix  -4 

that.     Testimony  is 'also  competent  in  such  ease  which 

show  tlie  condition  of  the  lands  around  such  watereov.-. - 

^  324.   Increasing  height  of  dam — Whether  flash  boards  part 
of  dam. — A  court  of  equity  lias  power  to  restrain  one  from  in- 
creasing the  height  of  his  mill-dam,  if  such  ir.. 
would  be  productive  of  loas  of  health  in  the  family  of  an, 
residing   in   the  neighborhood   of  the   mill,   nor   does  i: 
whether  the  mill  is  in  the  town  or  the  country.1*2    In  a  case  in 
Missouri  Court  '.s  it  is  held  that  if  as 

all  dams,  stoppages  or  obstructions  of  watercourses  not  mad-. 
cording  to  law  shall  be  deemed  public  nuisances  and  dealt  with     - 
such,  and  if  a  watercourse  is  obstructed  by  raising  a 
above  its  prior  height  it  is  a  public  nuisance  and  should  be 
and  a  statute  which  accords  certain  privileges  in  regard  to  proposed 
dams  for  the  benefit  of  owners  of  public  grist  mills,  does  not  a] 
to  companies  organized  to  furnish  light  and  water  to  cities.     And 
where  the  increased  height  may  be  reduced  and  the  dam  restored  to 
its  previous  height  without  great  expense  or  depreciation  of  defend- 
ant's property,  the  court  will  so  order  in  a  ease  where  the  rule  is 
applicable  that  a  public  nuisance  will  be  restrained  at  the  suit 
of  a  private  person  who  sutlers  a  special  injury,  when  the  circum- 
stances render  relief  by  injunction  appropriate  and  the  plaintiff 
has  obtained  damages  in  a  legal  action,  and  the  nuisi  -  con- 

tinuous or  recurrent.     If,  however,  in  such  ;-.      -       5  this        .end- 
ant's  plant   would  be  destroyed  or  largely  diminished  in  value, 
equity  might  and  probably  would  hesitate  to  grant  an  injnncti 
As  to  flash  boards  it  is  held  that  they  may  -    lered  as  part 

of  a  dam  if  actually  used,  and  that  if  an  overflow  is  occasioned  by 
their  use  the  party  using  them  would  be  liable  for  the  injury,  even 

151    -         .;i    v.   Shirts.   27    lad.  72  Ga.   208;  Norwood  v.  Dickey.   IS 
57             -      Rep.   268,   61 

N.  K.  7^4.  as  to  extent  of.  153.  S.heurieh   v.    -  est    Mis- 
Water    beyond    original    ehan-  :-    ..ri    Light    Co..    100    Mo.    App.    406, 
nel.— Evidence     showing               I     of  S4    S,    W.    100?.    Rev.    Stat.    l$f>9.    § 
flooding.      See    City   of    Knnis   v.   Gil  B75S      /..Chap.   131.  eft 
der   32  Tex.  Cir,  App.  Sal,  74  S.  W,  Missouri  Light  Oo,  v.  Scheorich,  174 

Mo.    235,    upon    the    point    that    the 

ISS     Minor   et    al.   \     Da   Vaughn.  dam  was  t  public  nuisa- 

445 


§  325  Waters — Continued. 

though  not  in  use  all  the  time,  but  where  the  defendant  has  con- 
tinued the  nuisance,  and  is  not  the  original  creator  thereof,  such 
evidence  would  be  material  upon  the  question  of  notice  to  defend- 
ant to  abate.  The  damages  would  depend  upon  the  amount  of 
land  flowed,  whether  caused  by  such  flash  boards  or  by  the  more 
permanent  part  of  the  dam.154  But  it  is  also  decided  that,  in  an 
action  on  the  case  against  the  purchaser  of  a  dam  with  flash  boards 
upon  it,  for  flowing  water  upon  plaintiff's  land,  it  is  a  question  of 
fact  whether  such  flash  boards  are  or  are  not  a  part  of  such  dam.155 

§  325.  Construction  of  dam  by  municipality. — As  a  general 
rule  a  municipal  corporation  is  not  responsible  for  the  unauthor- 
ized and  unlawful  act  of  its  officers,  though  done  colore  officii;  but 
when  saich  corporation  itself  expressly  authorizes  such  act,  or  when 
done  adopts  and  ratifies  it,  and  retains  and  enjoys  its  benefits,  it  is 
liable  in  damages.  This  rule  applies  in  an  action  for  damages  oc- 
casioned by  the  construction  and  maintenance  of  a  dam  and  for 
an  injunction  restraining  its  maintenance  so  as  to  interrupt  the 
flow  of  water  in  the  stream,  occasioning  injury  to  plaintiff  in 
operating  his  mill ;  for  while  the  plaintiff  had  no  property  in  the 
water  itself  he  had  an  interest  in  it  as  it  passed  along  through  his 
land,  as  it  was  accustomed  to  run,  and  a  wrongful  and  unlawful 
interference  with  it  so  as  to  materially  interrupt  or  diminish  the 
natural  flow  of  the  stream  to  plaintiff's  damage  would  constitute  a 
cause  of  action.156  So,  neither  a  board  of  health  nor  a  municipality 
has  the  authority,  where  the  statute  confers  no  power,  to  appro- 
priate private  property  for  public  uses,  nor  provides  compensa- 
tion for  damages  for  such  appropriation,  to  abate  a  nuisance  on 
adjacent  land  by  the  erection  of  a  dam  upon  the  land  of  a  private 
person  without  his  consent ;  and  such  acts  being  beyond  the  power 
and  authority  of  a  city  to  do,  it  cannot  be  held  responsible  in  dam- 
ages where  the  acts  are  done  under  illegal  and  void  votes*  of  the 

154.  Grigsby  v.  Clear  Lake  Water  156.  Schussler  v.    Board   of  Corn- 
Co.,  40  Cal.  396,  407.  missioners    of    H.    County,    67    Minn. 

155.  Noyes  v.   Stillman,   24   Conn.  412,  69  Am.   St.  Rep.  424,  70  N.  W. 
15.     See  Occum  Company  v.  Sprague  6,  39  L.  R.  A.  75. 

Mfg.  Co.,  34  Conn.  529. 

446 


Waters — Continued.  §  326 


city  council,  even  though  a  part  of  the  damages  were  occasioned  by 
the  negligent  construction  of  the  dam.1 


157 


§  326.  Dams — Navigable  waters. — The  maintenance  of  a  dam 
across  a  river  which  in  its  natural  state  is  a  public  highway  con- 
stitutes a  continuing  nuisance  and  an  indictable  misdemeanor,  un- 
less authorized  by  the  legislature,  and  where  the  authority  given 
for  such  structure  is  conditioned  upon  the  construction  of  a  canal 
and  its  appurtenances,  to  be  used  in  connection  with  the  dam,  so 
that  through  the  whole  work  the  navigation  of  the  highway  might 
be  improved,  such  canal  and  appurtenances  must  be  provided, 
otherwise  the  dam  becomes  an  unauthorized  obstruction  to  navi- 
gation and  the  party  maintaining  it  maintains  a  nuisance,  and 
although  no  period  is  fixed  by  the  legislature  for  completing  the 
work,  yet  it  must  be  considered  that  the  scheme  was  an  entirety.158 
And  where  an  act  provides  that  a  dam  shall  be  built  with  a  suit- 
able slope  or  lock,  so  as  not  to  interrupt  navigation,  the  omission 
to  provide  such  slope  or  lock  will  not  deprive  the  party  of  the 
benefit  of  the  law,  when  it  does  not  appear  that  any  person  since 
the  erection  of  the  dam  has  either  attempted  or  desired  to  navigate 
the  river  at  that  point,  and  especially  when  it  is  clear  that  it  never 
was  used,  or  was  capable  of  being  used,  as  a  navigable  highway,  in 
the  proper  sense  of  the  term.159  In  a  comparatively  recent  case  in 
the  Supreme  Court  of  the  United  States,160  the  court  says :  "  As 
an  original  proposition  we  have  repeatedly  held  that,  in  the  ab- 
sence of  legislation  by  Congress,  a  State  has  power  to  improve  its 
lands  and  promote  the  general  health  by  authorizing  a  dam  to  be 
built  across  its  interior  streams,  though  they  were  previously  navi- 
gable to  the  sea  by  vessels  engaged  in  the  coastwise  trade.  This 
was  decided  in  Wilson  v.  Black  Bird  Creek  Marsh  Co.,161  in  a  brief 
but  cogent  opinion  by  Mr.  Chief  Justice  Marshall.  An  act  of  the 
State  of  Delaware  gave  the  defendant  the  right  to  build  a  dam 

157.  Cavanagh  v.  Boston,  139  28  Ind.  (28  Harr.)  258.  See  State  v. 
Mass.  426,  52  Am.  Rep.  716,  1  N.  E.  Elk  Island  Boom  Co.,  41  W.  Va.  796, 
834.  24  S.  E.  590. 

158.  State  v.  Dundee  Water  Power  160.  Manigault  v.  Springs,  199  U. 
Land  Co.   (N.  J.,  1904),  58  Atl.  1094.  S.  477,  478-480. 

159.  Neaderhouser    v.    The    State,  161,.  2  Pet.   (U.  S.)   245. 

447 


§326 


Waters — Continued. 


across  the  Black  Bird  Creek,  the  constitutionality  of  which  act 
was  attacked  as  an  abridgement  to  use  it  for  the  purposes  of  navi- 
gation. '  But  this  abridgement,'  said  the  court,162  '  unless  it 
comes  in  contact  with  the  Constitution  or  a  law  of  the  United 
States,  is  an  affair  between  the  government  of  Delaware  and  its 
citizens,  of  which  this  court  can  take  no  cognizance.'  The  act  was 
sustained.163  We  do  not  think  the  provision  of  the  Constitution  of 
South  Carolina  interferes  with  these  common  law  powers  of  the 
State  over  its  navigable  waters,"  The  court  then  considers  certain 
cases1,164  and  then  says :  "  While  all  of  these  cases  turned  upon  the 


1,62.  P.  251. 

163.  See,  also,  Pound  v.  Turck,  95 
U.  S.  459;  Gilman  v.  Phila.,  3  Wall. 
(U.  S.)  713;  Huse  v.  Glover,  119  U. 
S.  543. 

164.  "In  Eseanaba  Company  v. 
Chicago,  107  U.  S.  678,  688,  it  was 
held  that  the  right  of  bridging  navi- 
gable streams  extended  to  the  State 
of  Illinois,  notwithstanding  that  the 
ordinance  of  1787,  for  the  govern- 
ment of  the  Northwest  Territory, 
contained  a  clause  declaring  that 
'  the  navigable  waters  leading  into 
the  Mississippi  and  St.  Lawrence, 
and  the  carrying  places  between 
them,  shall  be  common  highways  and 
forever  free.'  The  power  to  span 
these  rivers  by  bridges  was  put, 
partly  upon  the  theory  that  the  lim- 
itations upon  the  power  of  the  State 
whilst  in  a  territorial  condition 
ceased  to  have  an  operative  force  ex- 
cept as  voluntarily  adopted  by  her 
after  she  became  a  State  of  the 
Union,  and  partly  upon  the  theory, 
as  said  by  Mr.  Justice  Field,  page 
689,  that  '  all  highways,  whether  by 
land  or  water,  are  subject  to  such 
crossings  as  the  public  necessities 
and  convenience  may  require,  and 
their  character  as  such  is  not  changed 


if  the  crossings  are  allowed  under 
reasonable  conditions,  and  not  so  as 
to  needlessly  obstruct  the  use  of  the 
highway.'  So,  also,  in  Cardwell  v. 
Bridge  Co.,  113  U.  S.  205,  a  provi- 
sion in  the  act  admitting  Califor- 
nia, that  '  all  the  navigable  waters 
within  the  said  State  shall  be  com- 
mon highways  and  forever  free,'  was 
held  not  to  deprive  the  State  of  the 
power  possessed  by  it  to  authorize 
the  erection  of  bridges  over  navigable 
waters.  Said  the  court;  page  211, 
'  the  clause,  therefore,  in  the  act  ad- 
mitting California,  quoted  above, 
upon  which  the  complainant  relies, 
must  be  considered,  according  to 
these  decisions,  as  in  no  way  impair- 
ing the  power  which  the  State  could 
exercise  over  the  subject  if  the  clause 
had  no  existence.'  To  the  same  ef- 
fect are  Williamette  Iron  Bridge  Co. 
v.  Hatch,  125  U.  S.  1;  Hamilton  v. 
Vicksburg,  &c,  R.  R.  Co.,  119  U.  S. 
280,  284.  In  Lake  Shore  R.  R.  Co. 
v.  Ohio,  165  U.  S.  365,  it  was  held 
that  the  act  of  September  19,  1890, 
conferring  upon  the  Secretary  of 
War  the  authority  to  direct  the  alter 
ation  of  such  bridges  so  as  to  render 
navigation  easy  and  unobstructed, 
did    not    deprive    the    States    of    au- 


448 


Waters — Continued.  §  327 

power  of  the  State  to  authorize  the  erection  of  bridges,  the  same 
principle  applies  where  the  legislature  deems  it  necessary  to  the 
public  welfare  to  make  other  improvements  for  the  reclamation  of 
swampy  and  overflowed  lands,  though  certain  individual  proprie- 
tors may  thereby  be  subjected  to  expense.  The  question  whether 
Kinlock  Creek  could  be  obstructed  without  the  permission  of  the 
secretary  of  war,  does  not  arise  in  this  case  and  is  specially  dis- 
claimed by  the  plaintiff."  165  So  a  dam  may  obstruct  navigation  and 
it  is  not  a  public  nuisance  though  without  any  sluice  where  it  is 
erected  under  the  lawful  authority  in  a  floatable  stream  where  it  is 
erected  to  subserve  a  purpose  beneficial  to  the  public,  such  as  a 
mill.166  It  is  declared  in  an  early  Maryland  case  that  whenever 
in  the  course  of  a  stream,  it  ceases  to  be  a  public  highway  for  com- 
merce between  one  State  and  another,  at  that  point  its  national 
character  terminates,  and  above  that  it  is  within  the  exclusive 
jurisdiction  of  the  State,  and  a  legislative  act  authorizing  its  ob- 
struction by  a  mill-dam  is  a  good  defense  to  a  prosecution  for  a 


§  327.  Restoration  of  dam — Parol  license. — If  the  restora- 
tion of  a  dam  would  constitute  a  pond  a  nuisance  so  as  to  injur- 
iously affect  health,  equity  will  grant  relief.168  And  a  dam  erected 
to  restore  natural  conditions  existing  in  a  creek  which  had  been 
lowered  below  a  river  will  be  limited  by  the  court  to  a  height  not 
greater  than  the  natural  river  bank.169  In  a  Georgia  case  it  is  de- 
cided that  if  the  person  who  originally  erected  a  dam  had,  as 
against  another,  the  right,  without  liability,  to  maintain  the 
structure  at  a  given  height,  such  person  had  also  the  right  to  repair 
leaks  in  it,  or  rebuild  in  case  it  washed  away ;  and  his  successor  in 
title  acquired  all  his  rights  in  the  premises,  and  would  not  be 

thority     to     bridge    such     streams."  Am.  &  Eng.  R.  Cas.  694,  23  L.  R.  A. 

Manigault  v.  Springs,  199  U.  S.  477,  674.     See  §§  272-274  herein. 
478-480.     See    §§   272-274   herein.  167.  Neaderhouser    v.    The    State, 

165.  Manigault  v.  Springs,  199  U.  28  Ind.  (28  Harr.),  258. 

S.  477,  478-480.  168.  De  Vaughn  v.  Minor,  77  Ga- 

166.  Watts  v.    Norfolk  &    W.    R.       809,  1  S.  E.  433. 

Co.,  39  W.  Va.  196,  19  S.  E.  521,  57  169.  Wallace    v.     Farmers    Ditch 

Co.,  130  Cal.  578,  62  Pac.  1078. 

449 


§  328  Waters — Continued. 

liable  in  damages  for  exercising  the  same,  either  to  the  person 
against  whom  the  original  right  existed,  or  his  privies  in  estate. 
It  is  also  held  that  a  parol  license,  until  acted  upon,  is  ordinarily 
revocable ;  but  where  it  has  been  acted  upon,  and  money  expended 
on  the  faith  of  it,  it  becomes  irrevocable.  If  a  dam  has  been 
erected  under  a  parol  license,  and  no  expense  at  all  has  been  in- 
curred except  in  its  erection,  and  it  washes  away,  the  party  grant- 
ing the  original  license  may  then  revoke  it  before  the  other  has 
incurred  any  expense  in  rebuilding;  but  where,  in  connection 
with  the  dam,  money  had  been  expended  for  buildings,  machinery, 
etc.,  the  mere  washing  away  of  the  dam  alone  would  not  authorize 
a  revocation  of  the  parol  license.  The  successor  in  title  of  one 
having  rights  under  a  parol  license  is  not  liable  in  damages  for 
exercising  such  rights,  either  to  the  person  against  whom  the  origi- 
nal rights  existed,  or  to  his  privies  in  estate.1'0 

§  328.  Prescription.171 — It  is  declared  in  a  Maine  case  that 
there  is*  no  doubt  that  the  right  to  pollute  a  stream  to  a  greater  ex- 
tent than  is  permissible  of  common  right  may  be  acquired  by  pre- 
scription.172 But  something  more  than  a  trivial  and  occasional  use 
is  required.173  It  is  held,  however,  that  a  right  to  maintain  a  dam 
as  against  the  public  cannot  be  acquired  by  prescription,  but  such  a 
right  may  be  acquired  as  against  a  prvate  owner  where  the  injury 
is  special.174  A  person  is  not  entitled  so  to  use  his  own  lands  as 
thereby  to  pollute  water  that  eventually  mingles  by  means  of  natu- 

170.  Middlebrook  v.  Wayne,  96  R.  Co.,  28  Ind.  App.  457,  63  N.  E. 
Ga.  452,  23  S.  E.  398.  233. 

171.  See  §  53  herein.  As    to    diversion   by    dams    and 

172.  Masonic  Association  v.  Har-  prescriptive  right,  see  Bliss  v.  Gray- 
ris,  79  Me.  250,  255,  9  Atl.  937.  son,  24  Xev.  422,  56  Pac.  231,  25  Xev. 

173.  Brown  v.   Dunstable    (1899),  329,59  Pac.  888. 

2  Ch.  378,  68  L.  J.  Ch.  N.  S.  498.  As  to   ancient  sewers  and  Eng- 

174.  Charnley  v.  Shawano  Water  lish  Rivers  Pollution  Prevention  Act, 
Power  &  River  Imp.  Co.,  109  Wis.  1876,  see  Yorkshire  West  Riding 
563,  85  X.  W.  507,  53  L.  R.  A.  895.  Council  v.  Holmfirth  Urban  Sanitary 

As  to  public  nuisance  and  pre-  Authority,  63  L.  J.  Q.  B.  X.  S.  485, 

scriptive    right    to    maintain    culvert  (C.  A.)    (1894),  2  Q.  B.  842,  9  Rep. 

which    causes    overflow    of    land,    see  462,    59   J.    P.    213,   71   L.   T.   X.    S. 

Kelly  v.  Pittsburgh,  C,  C.  &  St.  L.  217. 

450 


Wateks — Continued.  §  328 

ral  underground  passages,  into  which  he  has  introduced  it,  with 
an  open  stream  passing  through  his  neighbor's  land  to  such  a  de- 
gree as  to  render  the  water  of  that  stream  unfit  for  a  purpose  for 
which  his  neighbor  has  acquired  a  prescriptive  right  to  use  it.175 
But  it  is  held  that  the  abstraction  of  water  from  a  natural  stream 
openly  and  under  a  claim  of  right,  for  a  period  of  twenty  years, 
to  a  tenement  not  abutting  on  the  stream,  will  create  no  easement 
to  have  pure  water  flow  down  the  stream  to  the  point  of  abstrac- 
tion.176 In  an  English  case  the  defendant  occupied  papsr  mills  on 
the  banks  of  a  stream,  into  which  he  discharged  the  refuse  of  his 
manufacture.  A  prescriptive  right  to  foul  the  stream  had  besn 
acquired  by  defendant's  predecessor  in  the  occupation  of  the  mills. 
Those  predecessors  used  rags  in  the  manufacture  of  paper.  Soon 
after  defendant  came  into  occupation  of  the  mills  he  introduced 
into,  and  employed  in,  the  manufacture  a  new  raw  material  called 
esparto  grass.  Upon  a  suit  by  a  neighboring  occupier  to  restrain 
the  defendant  from  fouling  the  stream  to  the  plaintiff's  injury, 
it  was  contended  that,  independently  of  any  increased  fouling  of 
the  stream,  the  plaintiff  had  a  right  to  the  injunction  by  reason  of 
the  nuisance  caused  by  the  use  of  esparto  grass,  being  a  new  kind 
of  nuisance  in  respect  of  which  no  prescriptive  right  had  been  ac- 
quired by  the  defendant.  It  was  held  that  it  was  not  sufficient  for 
the  plaintiff  to  show  that  the  defendant  used  in  his  manufacture 
a  new  raw  material,  but  that  he  must  show  further  a  greater 
amount  of  pollution  and  injury  arising  from  its  use;  and  that  the 
onus  of  showing  this,  lay  on  the  plaintiff.  The  plaintiff  not  having 
shown  this,  his  bill  w7as  dismissed  with  costs.177 

1.75.  Hodgkinson  v.  Ennor,  4  B.  &  their  tin  bounds,  for  the  purpose  of 

S.  229;   32   L.   J.   Q.   B.  231;    9  Jur.  streaming  their  tin,  will  not  prevent 

(N.   S.)    1152;    8   L.   T.   451;    11   W.  the  acquisition  by  another  of  a  pre- 

R.  775.  scriptive  right  under   2  and   3   Will. 

176.  Stockport  Water  Works  Co.  4,  c.  71,  to  the  enjoyment  of  the 
v.  Potter,  3  H.  &  C.  300,  10  Jur.  (N.  water  by  a  twenty  years'  user;  nor 
S.)    1005,  10  L.  T.  748.  will    this    right    be    affected    by    an 

177.  Baxendale  v.  McMurray,  L.  agreement  with  the  tin-bounders  for 
R.  2  Ch.  790,  16  W.  R.  32.  a    money    payment    to    abstain    from 

The  rights  of  tin-bounders  fouling  the  water  by  streaming  their 
according  to  the  customary  law  of  tin  therein.  Gared  v.  Martyn,  19  C. 
Cornwall  to  the  use  of  water  within       B.    (N.   S.)    732,  34  L.  J.  C.  P.  353, 

451 


§  329  Waters — Continued. 

§  329.  Damages — Pollution  of  water,  overflow,  flooding,  etc. 
— A  distinction  exists  between  a  permanent  and  temporary  in- 
jury.178 In  an  Alabama  case  where  an  action  to  recover  dam- 
ages to  land  resulting  from  the  pollution  of  a  stream,  is  brought 
by  the  executor  of  a  lower  riparian  owner,  who  had 
held  possession  of  the  land,  as  such  executor  since  the 
death  of  his  testator,  it  is  held  that  the  damages 
eoverable  are  not  limited  to  the  diminution  of  the  rental  value 
of  the  land  for  one  year ;  but  are  the  difference  between  the  value 
of  the  land  with  and  without  the  injury  complained  of.179  In 
Connecticut  where  by  the  pollution  of  a  stream  the  plaintiff  sus- 
tains injury,  the  damage  which  consists  in  the  depreciation  of  the 
usuable  value  of  his  property  directly  caused  by  defendant's  wrong- 
ful act  may  be  ascertained  without  determining  with  mathemati- 
cal certainty  the  precise  amount  of  that  value  with  the  stream 
unpolluted  and  its  precise  amount  after  pollution.  The  amount 
of  damage  in  such  case  is  intrinsically  approximate,  depending 
largely  upon  the  sound  judgment  of  the  trier,  and  it  is  sufficient 
if  the  evidence  furnishes  data  from  which  damages  to  the  amount 
found  by  the  court  may  be  inferred  with  reasonable  certainty  and 
without  resort  to  mere  conjecture.  ]STor  is  the  absence  of  evidence 
of  opinions  of  neighbors,  as  to  the  rental  value  of  the  property,  a 
legal  bar  to  the  ascertainment  of  damages  from  other  testimony.180 

11  Jur.   (ST.  S.)    1017,  13  L.  T.  74,  14  Ry.    Co.   v.   King,   23   Ind.   App.   573, 

W.  R.  62.  55  X.   E.  875. 

Presumption    as    to    nuisance.  179.  Drake  v.  Lady   Ensley   Coal, 

Two  bolts,  or  heaps  of  stones,  made  Iron  &  R.  Co.,  102  Ala.  501,  24  L.  R. 

use  of  in  throwing  and  landing  nets,  A.  64,  14  So.  749,  48  Am  St.  Rep.  77. 

had  been  used  in  the  Tweed  from  time  180.  Dudley      v.      City      of     New 

immemorial,  and  although  they  were  Britain,  77  Conn.  322,  59  Atl.  89,  per 

admitted    to   be   nuisances    now,    yet  Hammersley.  J.     The  court  below  in- 

the   court  could   not   pronounce  that  eluded    in   the    estimate    of    damages 

they  were  so  at  the  time  of  the  erec-  the   sum   of   $1,200  for   rental   value, 

tion,  but  on  the   contrary,  intimated  There  was  a  default  and  hearing  in 

an     opinion     that     the     presumption  damages.     The  court  also  said  in  this 

ought  to  be  that  at  first  they  were  case :      "  Had  the  defendant  formally 

not  nuisances.     Rex  v.   Bell,    1  L.   J.  claimed  that   in   this   case  the   plain- 

(O.  S. )  R.  B.  42.  tiff  could  not  ask  the  court  to  resort 

178.  Joyce    on    Damages,    §    2150.  to  mere  arbitrary  conjecture  for  the 

See,  also,  Cleveland,  C,  C.  &   St.  L.  ascertainment    of    the    damage,    but 

452 


Waters — Continued.  §  320 

Again,  personal  discomfort  or  inconvenience  to  plaintiff  from  a 
nuisance,  caused  by  the  deposit  of  sewage  and  the  consequent 
offensive  condition  of  things  upon  his  land  is  immaterial,  even 
though  he  does  not  reside  upon  the  land  or  never  visits  it,  and 
although  its  selling  or  rental  value  is  unimpaired,  nominal  dam- 
ages at  least  should  be  awarded  in  such  a  case.181  Under  a  Georgia 
decision,  evidence  of  depreciation  in  rental  value  of  property 
may  be  given  to  show  special  damage  caused  by  a  public  nuisance, 
such  as  a  stagnant  city  pool  of  water.182  And  in  that  State  the 
measure  of  damages  for  any  illegal  overflow  of  lands  is  the  actual 
damage  coming  to  the  land  by  such  illegal  overflow.183  In  an 
Illinois  case,  if  the  nuisance  consists  in  the  discharge  of  sewage 
over  lands  of  the  plaintiff  and  the  work  has  been  done  in  a  skillful 
manner  and  the  best  material  employed  in  it's  construction,  the 
damages  actually  sustained  is  the  measure  of  recovery,  and  puni- 
tive damages  are  not  recoverable.184  In  Indiana  a  recovery  may  be 
had,  in  an  action  for  damages  for  polluting  a  stream,  for  tem- 
porary loss  of  the  use  of  plaintiff's  land  where  a  claim  is  made 
for  the  "  rental  and  market  value  of  said  lands  "  and  this,  with 
other  allegations,  shows  that  the  damages  sought  to  be  recovered 
were  not  exclusively  for  permanent  injuries  to  the  real  estate  it- 
self, but  chiefly  for  such  as  temporarily  interfered  with  the  pres- 
ent use  of  the  premises  for  residential  and  farming  purposes,  and 
for  the  raising  of  stock,  and  the  very  nature  of  the  acts  complained 
of  constituted  them  a  continuing  nuisance  rather  than  a  permanent 
injury  to  property,  and  the  measure  of  damages  would  be  the  de- 
preciation in  rental  value  caused  thereby.185    And  in  that  State  the 

Mould  be  entitled  to  recover  only  a  182.  Savannah,  F.  &  W.  R.  Co.  v. 
nominal  sum,  unless  in  some  way  he  Parish,  117  Ga.  893,  14  Am.  Xeg. 
showed  by  evidence,  data  and  means  Rep.  540-4,  45  S.  E.  280. 
from  which  the  court  could  ascertain  183.  Phinizy  v.  City  Council  of 
and  fix  the  amount  of  damage,  the  Augusta,  47  Ga.  260. 
court  would  doubtless  have  sustained  184.  City  of  Jacksonville  v.  Lam- 
that  claim,  and  we  must  assume  that  bert,  62  111.  519. 

the  court  applied  this  rule  in  weigh-  185.  Muncie   Pulp    Co.    v.    Martin 

ing  the  evidence  produced."  (Ind.,    1904),    72    N.    E.    882.        See 

181.  Watson   v.   New  Milford,  72  Cleveland,  C,  C.  &  St.  L.  Ry.  Co.  v. 

Conn.  561,  45  Atl.    167.  77    Am.   St.  King,    23    Ind.    App.    573,   55    N.   E. 

Rep.  345.  875. 

453 


§  329  Waters — Continued. 

difference  in  value  of  abutting  land  before  and  after  its  injury 
by  a  stream  being  polluted  is  the  measure  of  damages ;  such  dam- 
ages being  recoverable  as  will  compensate  for  the  injury  actually 
sustained.186  It  is  further  held  in  that  State  that,  in  an  action  by 
a  riparian  owner  against  a  manufacturing  company  for  damages 
for  the  pollution  of  a  stream,  the  court  was  not  restricted  to  the 
mere  depreciation  of  property  in  ascertaining  the  damages,  but 
might  take  into  consideration  the  inconvenience  and  discomfort  to 
plaintiffs  and  their  families  caused  thereby.187  In  Iowa  the  meas- 
ure of  damages  flowing  from  a  continuing  nuisance  is  not  the  de- 
preciation of  the  market  value  of  the  land,  for  it  may  be  abated 
some  time,  but  ordinarily  the  loss  in  its  use  caused  thereby,  and 
such  special  damages  as  may  result  therefrom,  and  where  pastur- 
age with  the  water  of  a  creek  befouled  by  sewerage  is  worthless, 
so  that  its  rental  value  is  lost,  and  cattle  did  not  gain  in  weight 
when  put  into  the  pasture,  such  evidence  is  rightly  received  as 
tending  to  support  a  claim  of  loss  in  value  of  the  use  of  the 
land,  but  such  loss  and  loss  in  weight  of  cattle  cannot  both  be 
allowed,  as  it  would  be  awarding  double  damages,  and  plaintiff 
should  therefore  choose  on  which  theory  damages  will  be  claimed.188 
Again,  damages  for  a  continuing  nuisance  may  be  shown  subse- 
quent to  filing  of  the  original  petition,  where  there  is  an  amend- 
ment filed  claiming  damages  to  the  time  of  trial.189  And  in  an 
action  for  damages  and  to  abate  a  nuisance  consisting  of  the 
discharge  on  plaintiff's  land  of  refuse  from  a  creamery,  the  dam- 
ages are  not  limited  to  the  damages  to  the  land  or  its  rental  value, 
since  a  nuisance  may  cause  special  damages  to  a  private  person  not 
susceptible  of  direct  proof.190  So,  where  the  discharge  of  refuse 
from  a  creamery  onto  plaintiff's  land  caused  a  mud  hole,  which 
was  fenced  by  plaintiff  to  keep  his  stock  away  from  it,  and  the 

186.  West  Muncie  Strawboard  Co.  473,  93  N.  W.  558;  Hollenbeck  v. 
v.  Slack   (Ind.,  1904),  72  N.  E.  879.       City  of  Marion,  116  Iowa,  69,  89  N. 

187.  Weston    Paper    Co.    v.    Pope,       W.  210. 

155  Ind.  395,  56  L.  R.  A.  899,  57  N.  189.  Bowman    v.    Humphrey,    124 

E.  719.  Iowa,  744,  100  N.  W.  854. 

188.  Vogt  v.  City  of  Grinnell  190.  Van  Lossen  v.  Clark,  113 
123  Iowa,  332,  98  N.  W.  782.  See  Iowa,  86,  52  L.  R.  A.  279,  84  N.  W. 
Bennett  v.  City  of  Marion,  119  Iowa,  989. 


454 


Waters — Continued.  §  329 

smell  from  the  refuse  extended  several  hundred  feet,  and  the 
rental  value  of  the  land  was  decreased  thereby,  special  damages 
were  sufficiently  shown  to  sustain  a  judgment  for  the  damages 
and  an  abatement  of  the  nuisance.191  In  another  case  in  the 
same  State  it  is  held  that  the  jury  was  properly  instructed  that  it 
should  not  consider  any  damages  accruing  more  than  five  years 
prior  to  the  beginning  of  the  action,  and  that  the  measure  of 
-damages  was  the  difference  between  the  value  of  the  land,  includ- 
ing crops,  etc.,  before  and  after  each  flooding;  but  that  the  plain- 
tiff could  not  recover  for  crops  planted  by  him  when  he  knew 
they  would  be  flooded  and  destroyed,  although,  even  then,  they 
should  consider  the  rental  value  of  the  land  flooded  and  the  per- 
manent injury  thereto.192  Again,  where  the  upper  owner,  by 
the  unreasonable  use  of  a  stream,  pollutes  it,  so  that  the  water, 
as  it  flows  upon  the  farm  below,  is  not  only  useless  for  stock 
and  domestic  purposes,  but  ako  is  a  source  of  sickness,  pain  and 
discomfort  to  the  lower  owner  and  his  family,  he  is  entitled  to 
recover  not  only  the  difference  in  the  rental  value  of  the  farm 
on  account  of  the  nuisance,  but  also  such  special  damages  as 
he  may  have  suffered,  including  that  resulting  from  sickness,  pain 
and  discomfort.193  In  Maryland,  damages  arising  subsequent  to 
the  action  may  be  considered  when  they  are  the  natural  and 
necessary  result  of  the  act  complained  of.194  Under  a  Missouri 
case,  in  assessing  damages  for  a  nuisance  arising  from  the  dis- 
charge of  sewage  by  a  city  into  a  stream  of  water,  and  the  prin- 
cipal claim  is  a  serious  injury  to  plaintiff's  health,  the  jury  must 
base  their  estimate  of  damages  upon  the  evidence,  but  much 
must  be  left  to  their  discretion  because  of  the  great  difficulty,  if 
not  impossibility,  of  proving  the  exact  amount  of  damages  sus- 
tained in  such  a  case.195  In  Montana,  where  the  injury  to  land 
is  permanent  and  its  value  absolutely  destroyed  for  agricultural 

191.  Van  Lossen  v.  Clark,  113  Mfg.  Co.,  77  Iowa,  576,  42  N.  W. 
Iowa,  86,  52  L.  R.  A.  279,  84  N.  W.       448,  14  Am.  St.  Rep.  319. 

989.  194.  Mayor      &      Councilmen      of 

192.  Willitts  v.  Chicago,  Burling-  Frostburg  v.  Duffy,  70  Md.  47,  10 
ton  &  Kansas  City  R.  Co.,  88  Iowa,  Atl.  642.  See  Hayden  v.  Albee,  20 
282,  21  L.  R.  A.  608,  55  N.  W.  313.  Minn.  159  Gil.  143. 

193.  Ferguson    v.    The   Firmenich  195.  City  of  Kewanee  v.  Guilfoil, 

81  Mo.  App.  490. 

455 


§  320  Waters — Continued. 

purposes  by  fouling  the  waters  of  a  stream  and  the  deposit  of 
refuse  and  poisonous  matters  on  the  surface,  the  rule  of  damages 
for  such  injury  is  the  difference  between  the  value  of 
the  land  prior  to  the  injury  and  its  value  after  the 
injury.  Generally  the  recovery  of  damages  for  a  total 
and  permanent  injury  to  land  includes  all  injuries,  past, 
present  and  future.  It  practically  amounts  to  an  allowance  to 
take  the  land  upon  which  the  nuisance  has  been  committed  for 
those  purposes  upon  payment  of  a  reasonable  compensation  there- 
for, and  the  amount  fixed  as  damages  by  the  jury  and  court  will 
be  treated  as  such  reasonable  compensation.  But  where  the  perma- 
nent and  total  injury  to  land  for  agricultural  purposes  does  not 
immediately  result  from  the  nuisance  itself,  but  several  years 
elapse  before  such  injury  is  completed,  there  may  be  a  recovery  of 
damages  for  the  yearly  injury  to  crops  until  the  land  is  totally  and 
permanently  injured,  and  where  that  transpires,  no  damages  can  be 
allowed  for  injury  to  the  crops  ensiling  thereafter.  In  order,  how- 
ever, to  recover  for  injury  to  crops  and  permanent  injury  to  the 
same  land  the  complaint  and  proof  should  show  distinctly  and 
unequivocally  the  date  when  the  permanent  injury  to  the  land  took 
place,  and  the  annual  injury  to  crops  prior  to  that  date.  If  dif- 
ferent portions  of  the  land  become  permanently  injured  at  dif- 
ferent dates,  such  facts  should  also  appear.  But  it  is  error  to  allow 
for  injury  to  crops  and  permanent  injury  to  the  same  land  where 
such  allowance  would  amount  to  double  damages',  and  it  cannot  be 
ascertained  from  the  complaint  or  evidence  when  such  total  and 
permanent  injury  was  actually  completed.196  It  is  held  in  a  New 
York  case  that  the  usuable  value  of  the  premises,  as  well  as  the 
value  thereof  without  the  claimed  nuisance  coupled  with  the  value 
of  improvements'  increasing  the  utility  of  the  premises  and  enhanc- 
ing their  value,  and  also  the  probable  and  actual  results  as  to  ma- 
laria or  other  disorders  or  diseases  may  be  shown  where  a  stream 
flowing  through  plaintiff's  land  is  polluted  by  the  discharge  of  sew- 
age creating  an  alleged  nuisance  and  an  action  to  abate  the  same 
and  for  damages  is  brought.197   Under  a  jSTorth  Carolina  decision 

196.  Watson      v.       Colusa-Parrot  197.  Wing  v.  City  of  Rochester,  » 

Mining     &     Smelting     Co.      (Mont.,       N.  Y.  St.  R.  473. 
1905),  79  Pac.  14. 

456 


Waters — Continued.  §  329 

if  a  mill  dam  is  erected  and  causes  land  to  be  overflowed  the 
action  may  be  continued  from  time  to  time,  every  continuance 
thereafter  being  considered  as  a  new  erection.  It  is  not  proper, 
however,  in  the  first  trial  to  give  exemplary  damages,  but  such 
only  as  will  compensate  for  actual  loss.  But  where  the  abating 
the  nuisance  will  restore  the  lands  to  the  same  value  and  use  as 
before  the  nuisance,  and  no  real  loss  has  been  as  yet  sustained, 
the  damages  should  be  small,  but  if  the  unisance  should  there- 
after be  continued  and  a  new  action  brought  the  damages  should 
be  exemplary,  so  as  to  compel  an  abatement  of  the  nuisance.198 
Under  a  Pennsylvania  decision  the  damages  are  the  actual  value 
of  the  property  injured  by  pollution  of  a  stream  where  such 
value  is  in  excess  of  the  cost  of  clearing  the  polluted  stream, 
otherwise  such  cost  of  clearing  will  be  allowed  as  damages;  and 
where  the  right  to  the  use  of  a  watercourse  is  in  a  person  the 
damages  for  its  pollution  cannot  be  reduced  by  a  defense  that  a 
water  supply  sufficient  for  such  persons''  purposes  could  be  sup- 
plied by  a  water  company.199  And  in  another  case  in  that  State  it 
is  decided  that  where  it  becomes  necessary  on  impairment  of  the 
water  power  of  a  mill  and  the  pollution  of  the  waters  of  a  creek 
above  the  same  the  damages  on  injunction  may  include  the  addi- 
tional expense  of  steam  necessary  to  run  the  mill  in  consequence  of 
the  acts  of  defendant.  Also,  the  cost  of  cleaning  out  the  mill 
race  and  dam.200  In  Tennessee  the  pollution  of  water  having 
ceased  damages  should  only  be  recovered  for  the  injury  while  it' 
lasted,  and  from  the  deposit  until  such  time  as  it  should  be  washed 
away.201  The  evidence  as  to  damages  should  support  the  allega- 
tions as  to  rental  value.202  And  if  injury  and  damages  are  clearly 
shown  as  in  case  of  overflow  of  lands,  a  finding  of  nominal  damages 
only,  is  against  evidence.203     But  where  there  is  no  evidence  as  to 

198.  Carruthers   v.   Tillman,   2   N.       Co.   v.   Hamilton,    100   Tcnn.   252,   46 
C.   (1  Hayw.)  576.  Am.  St.  Rep.  48,  14  So.   167    (action 

199.  Stevenson    v.    Ebervale    Coal       on  the  case  for  damages). 

Co.,  201  Pa.  St.  112,  50  Ml.  818.  202.  Adams    v.    City    of    Modesto, 

200.  Keppel    v.    Lelingle    Coal    &       131   Cal.   501,   63   Pac.   1083,  61   Pac. 
Nav.    Co.,    200   Pa.    St.   649,   50   Atl.       957. 

302.  203.  Learned    v.    Castle,    78    Cal. 

201.  Tennessee    Coal,   Iron  &   Rd.       454,  21  Pac.  11,  18  Pac.  472. 

457 


§  329  Watees — Continued. 

the  extent  of  the  damages  occasioned  by  the  pollution  of  water 
of  a  stream  by  factory  refuse  matter,  and  it  does  not  appear  that 
serious  results  followed  the  creation  of  a  nuisance,  nominal  dam- 
ages only  can  be  recovered.204  So,  in  an  action  on  the  case  for  a 
nuisance  in  overflowing  plaintiff's  lands  by  erecting  a  mill  dam, 
and  the  evidence  showed  that  the  land  which  was  overflowed  was 
low  land  usually  overflowed  at  high  water,  nominal  damages  only 
were  awarded.205  If  the  nuisance  consists  in  a  discharge  of  sew- 
age over  private  lands  and  at  the  time  of  trial  it  has  been  so  far 
abated  that  no  considerable  annoyance  is  suffered  by  plaintiff  or 
his  family  these  facts  will  be  considered  in  determining  whether 
the  damages  are  excessive.206  Again,  evidence  as  to  the  cultivation 
of  crops  prior  to  the  time  for  which  the  plaintiff  was  entitled  to 
recover,  and  of  the  effect  of  the  water  thereon,  is  held  admissible 
as  tending  to  show  the  effect  of  the  water  upon  the  land  within 
the  time  for  which  a  recovery  could  be  had,  the  jury  being  in- 
structed that  it  could  not  be  considered  for  any  other  purpose.207 
Evidence  is  also  relevant  upon  the  question  of  damages  to  show 
what  it  would  cost  to  remove  offensive  deposits  cast  upon  plaintiff's 
land.208  Damages  for  a  nuisance  should  not,  however,  be  con- 
jectural, and  this  rule  applies  to  an  estimation  based  on  possible 
sales  of  land  alleged  to  have  been  prevented  by  the  nuisance 
where  there  is  nothing  to  show  that  the  land  could  have  been  sold 
at  the  conjectural  price  or  even  at  reduced  rates.209 

204.  Perry  v.  Howe  Co-operative  bert,  62  111.  519.  See,  also,  Steven- 
Creamery  Co.,  125  Iowa,  415,  101  N.  son  v.  Ebervale  Coal  Co.,  201  Pa.  St. 
W.  150.  *  112,  50  Atl.  818. 

205.  Carruthers  v.  Tillman,  2  N.  Appendix  A.  The  questions  of 
C.  (1  Hayw. )  576.  the  bill  of  rights  in  connection  with 

206.  City  of  Jacksonville  v.  Lam-  riparian  rights;  interference  there- 
bert,   62  111.   519.  with  by  a  city  for  sewage  purposes; 

207.  Willitts  v.  Chicago,  Burling-  use  of  xoater  as  property  and  compen- 
ton  &  Kansas  City  R.  Co.,  88  Iowa,  sation;  of  nuisance  and  of  damages, 
282,  21  L.  R.  A.  608,  55  N.  W.  313.  are  fully  discussed  in  a  case  decided 

208.  Watson  v.  New  Milford,  72  in  1901  by  the  Supreme  Court  of 
Conn.  561,  45  Atl.  167,  77  Am.  St.  Ohio,  City  of  Mansfield  v.  Balliett. 
Rep.  345.  See  Stevenson  v.  Ebervale  65  Ohio  St.  451,  63  N.  E.  86,  58  L. 
Coal  Co.,  201  Pa.  St.  112,  50  Atl.  R.  A.  628,  and  the  court,  per  Will- 
818.  iams,   J.,    says:   "The   plaintiff    sued 

209.  City  of  Jacksonville  v.  Lam-  for  alleged  violations,  by  the  defend 

458 


Waters — Coxtin  ued. 


§329 


ant,  of  his  rights  as  a   riparian   pro- 
prietor.    He  is  the  owner  of  two  val- 
uable   farms,    by    or    through    which 
runs  a    small   natural    water   course, 
known  as  the  Rocky  Fork  of  the  Mo- 
hican  river.     Both   of  the   farms  are 
naturally   adapted  to  and  have  been 
used    for    agricultural     and    grazing 
purposes.        Each    farm   is   improved, 
and   each   one   has   on    it   a   dwelling 
house,  barn  and  other  suitable  build- 
ings.    One  of  them  known  in  the  case 
as   the  '  home  farm,'    is   occupied   by 
the  plaintiff  as  his  family  residence, 
and  had  been  for   many  years  before 
the    alleged     encroachments    on     hia 
rights  by  the  defendant.     The   other 
he  rents  to  tenants   who  occupy  and 
cultivate    it.        The    waters    of    this 
natural    stream    were   accustomed    to 
flow  by  and  through  these  farms,  sup- 
plying   them,    and    their    occupants, 
with    pure   and   wholesome    water   in 
sufficient  quantities   for  all   domestic, 
agricultural,  and  other  suitable  pur- 
poses for  which  pure  and  wholesome 
water    is   generally   used   and   needed 
upon   a    farm,   until   they   were    pol- 
luted  and   corrupted   by   the   alleged 
acts   of  the  defendant.       The   wrong 
complained  of  is,  that  the  defendant, 
a    city    of    something    over    eighteen 
thousand    inhabitants,    and    situated 
on    or    near   the    water    course   above 
the  plaintiff's  farms,  by  a  system  of 
sewerage   emptying   into   the   stream, 
caused  to  be  collected  and  discharged 
-  into   the  stream,    the   sewage   of   the 
city,  or  a  large  part  of  it,  which  was 
carried  down  the  stream  to  the  plain- 
tiff's farm,  where  it  accumulated  and 
remained   in   large  quantities.      As  a 
result  of  this  alleged  wrong  of  the  de- 
fendant, the  water  was  polluted,  and 
rendered  unfit  for  domestic  and  other 
ordinary  uses;  and,  in  time  of  fresh- 


ets, the  filth  was  washed  out  by  the 
force  of  the  stream  and  deposited  on 
the    plaintiff's   lands,    destroying   the 
grass  and  herbage,  and  causing  offen- 
sive   and   unwholesome   smells   which 
materially   interferred  with  the  com- 
fortable and  proper  enjoyment  of  the 
premises  by  the  plaintiff  and  his  fam- 
ily.     The    suit    was    defended   chiefly 
on  the  ground   that  the  stream  wa3 
corrupted,  in  part  at  least,  by  other 
independent    sources    over    which    de- 
fendant had   no  control;    though   the 
contention    most   relied    on    in    argu- 
ment here  is  that  the  city  cannot  be 
held  liable  for  the  acts  complained  of 
in  any  event.     In  the  court's  instruc- 
tions to  the  jury  the  defendant's  lia- 
bility was   confined  to  such   substan- 
tial  injury  as   the   plaintiff  actually 
sustained    in   consequence    of    the   al- 
leged   misconduct    of    the    defendant, 
and   his   measure  of   recovery,   if  the 
issues  were  found  in  his   favor,   was 
limited  to  such  an  amount  as  would 
reasonably    compensate    him    for    the 
material    interference   with   the   com- 
fortable enjoyment  of  his  home  farm, 
the  proper  and  necessary  use  of   the 
water  to  which  he  had  hitherto  been 
accustomed,  including  any  additional 
expense  rendered  necessary  in  water- 
ing his  stock,  and  the  loss  of  his  grass 
and    herbage.      His    damages    to    the 
rented  farm,  the  jury  were  instruct- 
ed, could   not  exceed  the  actual   loss 
resulting   from   a    diminution   in   the 
rents.     The  charge  given  covered,  sub- 
stantially, all  of  the  instructions  re- 
quested   by     the     defendant,    except, 
probably,  the  second  one,  which  reads 
as  follows:     '  The  right  of  plaintiff  to 
have  the  water  descend  on  him  in  its 
pristine  clearness   must   yield   to  the 
demands  of  a  denser  population  and 
the  march  of  civilization.' 


450 


329 


Waters — Continued. 


"  So  that  it  must  be  accepted  as  es- 
tablished  by    the    verdict    and   judg- 
ments below,  that  the  injury  of  which 
the  plaintiff  complains  was  caused  by 
the  defandant,  as  claimed,  and  that, 
in   consequence   thereof   he   sustained 
substantial    damage    of    the     special 
nature     and     degree     which      would 
enable      him      to      maintain      action 
therefor       if       inflicted     by     an     in- 
dividual or  private  corporation.     And 
he  is  not  without  like  remedy  against 
the  defendant,   unless,  as  claimed  by 
its  counsel,  it  has  a  par;i  mount  right, 
either   by   legislative   grant,   or   from 
necessity  for  the  preservation  of  the 
public  health,  safety,  and  welfare,  to 
subject  the  water  course  to  the  uses 
it  has  made  of  it,  without  accountabil- 
ity for  the  destruction  or  material  im- 
pairment  of   the   property    rights    of 
lower  riparian  owners. 

"  The  statutory  authority   for  this 
immunity,  it  is  contended  by  counsel, 
is  found  in  sections  2,232   and  2,370 
of  the  Revised  Statutes.     The  former 
section  provides  that  a  city  may  en 
ter  upon  and  hold  real  estate  without 
its     corporate     limits,     among    other 
enumerated     purposes,     'for     sewers, 
drains,  and  ditches,  and  for  this  pur- 
pose the  corporation  shall  have  power 
to  appropriate,  enter  upon  and  take 
private    property,    lying   outside    the 
corporate  limits.'     The  latter  section 
authorizes  municipal  corporations   to 
adopt  a  system  of  sewerage  'the  main 
or  principal  sewers  having  their  out- 
let in  a  river  or  other  proper  place.' 
The  lawful  exercise  of  the  power  con- 
ferred  on   municipal   corporations   to 
enter  upon  and  take  private  property 
for   any  of  the   purposes   enumerated 
by  the  former  section  requires  a  legal 
appropriation,    as   that   section    indi- 
cates, involving  the  assessment  of  com- 


pensation for  he  property  when  taken 
without   the  owner's   consent.        The 
stream  in  question  in  this  case  is  not 
a   river,  a   term  that  may   import   a 
stream  of  sufficient  volume  and  flow 
to  carry  off  sewage   emptied  into  it, 
and  thus  preserve   the   purity   of   its 
water;   nor,  as  will   be  hereafter  no- 
ticed, can  that  be  a  suitable  place  for 
the  deposit  of  sewage,  within  the  con- 
templation of  the  law,  where  that  will 
result  in  the  creation  of  a  public  or 
private  nuisance.   But  the  right  of  the 
plaintiff    to    redress    for    the    injury 
done  him  lies  back  of  any  mere  au- 
thorization by  the  statute  of  the  de- 
fendant's acts  which  inflicted  the  in- 
jury,   and    rests    upon    the    constitu- 
tional guaranty  which  secures  the  in- 
violability  of    private   property,    and 
the  right  of  the  owner  to  compensa- 
tion when  taken  for  any  public  use. 
Indeed,  it  appears  to  be  a  settled  prin- 
ciple of  universal  law,  independent  of 
constitutional      provision,     that     the 
right    to    compensation    for     private 
property  when  taken  for  a  public  user 
is  an  inseparable  incident  of  the  own- 
ership of  property.     It  is  declared  in 
Pumpelly  v.  Green  Bay  Co.,  80  U.  S. 
(13  Wall.)    166,  that  '  By  the  general 
law  of  European  nations  and  the  com- 
mon law  of  England  it  was  a  qualifi- 
cation of  the  right  of  eminent  domain 
that    compensation    should    be    made 
for   private  property  taken   or  sacri- 
ficed for  public  use.     And  the  consti- 
tutional    provisions     of    the     United 
States     and     of    the    several     States 
which   declare  that   private   property 
shall    not   be    taken    for    public    use 
without   just   compensation   were    in- 
tended to  establish  this  principle  be- 
yond legislative  control.'     And  it  was 
there  held  that :   '  It  is  not  necessary 
that    property    should    be    absolutely 


4G0 


Waters — Continued. 


329 


taken,  in  the  narrowest  sense  of  that 
word,  to  bring  the  case  within  the  pro- 
tection of  this  constitutional  provis- 
ion. There  may  be  such  serious  inter- 
ruption to  the  common  and  necessary 
use  of  property  as  will  be  equivalent 
to  a  taking,  within  the  meaning  of 
the  constitution.  The  backing  of 
water  so  as  to  overflow  the  lands  of 
an  individual  or  any  other  superin- 
duced addition  of  water,  earth,  sand, 
or  other  material  or  artificial  struc- 
ture placed  on  land,  if  done  under 
statutes  authorizing  it  for  the  public 
benefit,  is  such  a  taking  as  by  the  con- 
stitutional provision  demands  com- 
pensation.' 

"In  that  case  a  statute  of  Wisconsin 
authorized  the  construction  of  a  dam 
across  Fox  River,  in  order  to  improve 
its  navigation.     The  dam,  which  was 
constructed    in    accordance   with    the 
provisions  of  the  statute,  caused  the 
water  to  overflow  the  plaintiff's  lands 
on  account  of  which  he  suffered  sub- 
stantial injury,  for  which  he  brought 
suit.     It  was  claimed  by  the  defend- 
ant that  the  damages  sustained  by  the 
plaintiff  were  'such  as  the  State  had 
a    right    to   inflict    in    improving  the 
navigation  of  Fox  River,  without  mak- 
ing any  compensation  for  them.'     Mr. 
Justice  Miller,  in  resolving  this  con- 
tention against  the   defendant,   said: 
The    argument    of   the    defendant    is 
that  there   is  no  taking  of   the  land 
within  the  meaning   of  the   constitu- 
tional  provision,  and   that   the   dam- 
age is  the  consequential  result  of  such 
use  of  a  navigable  stream  as  the  gov- 
ernment had  a   right  to  for  the   im- 
provement of  its  navigation. 

"  'It  would  be  a  very  curious  and 
unsatisfactory  result,  if  in  constru- 
ing a  provision  of  constitutional  law, 
always  understood  to  have  been  adopt- 


ed for  protection  and  security  to  the 
rights  of  the  individual  as  against  the 
government,  and   which   has   received 
the  commendation   of   jurists,   states- 
men, and  commentators  as  placing  the 
just   principles    of    the    common    law 
on  that  subject  beyond  the  power  of 
ordinary  legislation  to  change  or  con- 
trol them,  it  shall  be  held  that  if  the 
government    refrains    from   the   abso- 
lute conversion  of  real  property  to  the 
uses  of  the  public  it  can  destroy  its 
value  entirely,  can  inflict  irreparable 
and  permanent  injury  to  any  extent, 
can,  in  effect,  subject  it  to  total  de- 
struction  without   making   any    com- 
pensation,  because   in    the   narrowest 
sense  of  that  word,   it   is   not   taken 
for  the  public  use.     Such  a  construc- 
tion    would     pervert      the     constitu- 
tional     provision      into      a     restric- 
tion upon  the  rights  of  the  citizen,  as 
those  rights  stood  at  the  common  law, 
instead  of  the  government,  and  make 
it  an  authority,  for  invasion  of  private 
right   under   pretext   of   public    good, 
which  had  no  warrant  in  the  laws  or 
practices  of  our  ancestors.' 

"And  the  learned  justice,  referring 
to  the  case  of  Gardner  v.  Newburgh, 
2  Johns  Ch.  (N.  Y.)  162,  obserbed 
that:  'In  the  case  of  Gardner  v. 
Newburgh,  Chancellor  Kent  granted 
an  injunction  to  prevent  the  trustees 
of  Newburgh  from  diverting  the  wa- 
ter of  a  certain  stream  flowing  over 
plaintiff's  land  from  its  usual  course, 
because  the  act  of  the  legislature 
which  authorized  it  had  made  no  pro- 
vision for  compensating  the  plaintiff 
for  the  injury  thus  done  to  his  land. 
And  he  did  this,  though  there  was  no 
provision  in  the  constitution  of  New 
York  such  as  we  have  mentioned,  and 
though  he  recognized  that  the  water 
was   taken  for   a   public  use.     After 


461 


§329 


Waters — Continued. 


citing  several  continental  jurists  on 
this  right  of  eminent  domain,  he  says 
that  while  they  admit  that  private 
property  may  be  taken  for  public  uses 
when  public  necessity  or  utility  re- 
quires, they  all  lay  it  down  as  a 
clear  principle  of  natural  equity  that 
the  individual  whose  property  is  thus 
sacrificed  must  be  indemnified.  And 
he  adds  that  the  principle  and  prac- 
tice of  the  English  government  are 
equally  explicit  on  this  point.  It  will 
be  seen  in  this  case  that  it  was  the 
diversion  of  the  water  from  the 
plaintiff's  land,  which  was  considered 
as  taking  private  property  for  pub- 
lic use,  but  which,  under  the  argu- 
ment of  defendant's  counsel  would, 
like  overflowing  the  land,  be  called 
only  a  consequential  injury.' 

"And  Mr.  Justice  Miller  concludes 
that :  ' If  these  be  correct  state- 
ments of  the  limitations  upon  the  ex- 
ercise of  the  right  of  eminent  do- 
main, as  the  doctrine  was  under- 
stood before  it  had  the  benefit  of  con- 
stitutional sanction,  by  the  construc- 
tion now  sought  to  be  placed  upon  the 
constitution  it  would  become  an  in- 
strument of  oppression  rather  than 
protection  to  individual  rights.  But 
there  are  numerous  authorities  to  sus- 
tain the  doctrine  that  a  serious  inter- 
ruption to  the  common  and  necessary 
use  of  property  may  be,  in  the  lan- 
guage of  Mr.  Angell,  in  his  work  on 
water  courses,  equivalent  to  the  tak- 
ing of  it,  and  that  under  the  consti- 
tutional provisions  it  is  not  necessary 
that  the  land  should  be  absolutely 
taken.' 

"Authors,  who  have  fully  investigat 
ed  the  subject,  are  quite  agreed  in 
their  conclusions,  that  riparian  rights 
are  property  rights,  and  therefore 
property,  in  the  legal  signification  of 


the  term,  and  within  the  meaning  of 
the  constitution.  In  Lewis  on  Emi- 
nent Domain,  Vol.  1,  Section  60,  that 
author  says  that :  'All  the  authori- 
ties agree''  that  small  streams  incap- 
able of  navigation  'are  wholly  private 
property,  and  that  the  title  of  the 
riparian  owner  extends  to  the  middle 
of  the  stream.'  And  in  Section  61 
it  is  said  that:  'It  may  be  well  laid 
down  as  a  well  settled  principle  that 
every  proprietor  over  or  past  whose 
land  a  stream  of  water  flows  has  a 
right  that  it  shall  continue  to  flow 
to  and  from  his  premises  in  quantity, 
quality,  and  manner  in  which  it  is 
accustomed  to  flow  by  nature,  sub- 
ject to  the  right  of  the  upper  pro- 
prietors to  make  a  reasonable 
use  of  the  stream  as  it  flows  past 
their  land.  This  right  is  a  part  of  his 
property  in  the  land,  and  in  many 
cases  constitutes  its  most  valuable 
element.  It  necessarily  follows, 
therefore,  that  any  violation  of  this 
right  in  the  exercise  of  the  power  of 
eminent  domain  is  a  taking  of  private 
property  for  which  compensation 
must  be  made.'  In  Section  62  the  rule 
is  stated  as  follows:  'Where  the 
water  of  a  stream  or  any  part  thereof 
are  taken  or  diverted  to  supply  a  city 
or  village  with  water,  or  for  the  use 
of  a  canal  or  railroad  company,  or  to, 
improve  a  highway  by  land,  or  to- 
make  a  new  channel  either  for  the 
improvement  of  navigation,  or  for  the 
protection  of  a  public  road,  or  for  any 
other  public  use,  compensation  must 
be  made  to  the  inferior  proprietors  on 
the  banks  of  the  stream  who  are  in- 
jured thereby.  The  only  dissenting 
case  which  has  come  to  our  notice  ib 
that  of  the  Commissioners  oi  Homo- 
chitto  River  v.  Withers,  in  which  the 
Supreme    Court    of    Mississippi    held 


462 


Watees — Continued. 


329 


that  it  was  not  a  taking,  to  divert  a 
stream  of  water  from  the  plaintiff's 
property  to  a  new  channel  for  the 
purpose  of  improving  navigation.  This 
decision  is  so  palpably  wrong  that  we 
do  not  think  it  requires  discussion.' 
"  'According  to  principles  heretofore 
laid  down,'  says  the  same  author,  in 
Section  84,  'It  follows  that  an  in- 
jury to  riparian  rights  for  public 
use  ia  a  taking  for  which  compen- 
sation must  be  made.  These  riparian 
rights  founded  on  the  common  law, 
are  property,  and  are  valuable,  and 
while  they  must  be  enjoyed  in  due 
subjection  to  the  rights  of  the  pub- 
lic, they  cannot  be  abridged  or  ca- 
priciously destroyed  or  impaired. 
They  are  the  rights,  of  which,  when 
once  vested  the  owner  can  only  be 
deprived  in  accordance  with  the  law 
of  the  land,  and,  if  necessary  that 
they  be  taken  for  public  use,  upon  due 
compensation.' 

"  In  Mills  on  Eminent  Domain, 
where  the  same  doctrine  is  main- 
tained, it  is  said,  Section  79,  that: 
'Riparian  rights  are  property.  Of  this 
property  the  owner  cannot  be  deprived 
without  just  compensation,  nor  can 
the  state  itself  exercise  such  a  power 
of  deprivation  or  confer  it  upon  some 
subordinate  municipality,  without 
making  compensation  for  the  property 
taken.'  And  in  Section  182  of  the 
same  work,  it  is  laid  down  as  settled 
law,  that:  'The  legislative  authority 
to  do  an  act  resulting  in  damages  to 
the  property  of  an  individual  cannot 
be  sustained,  without  the  payment  of 
damages,  on  the  simple  claim  that  the 
legislature  cannot  authorize  that 
which  is  improper.  It  is  beyond  the 
power  of  the  legislature  to  authorize 
the  infliction  of  an  injury  without 
compensation.      Charters    should   not 


be  construed  as  evincing  any  legisla- 
tive intention  to  authorize  an  injury, 
or  to  shield  the  corporation  from  a 
common  law  action,  in  case  compen- 
sation is  not  provided.  The  fact  that 
compensation  is  not  provided  should 
not  lead  the  court  to  suppose  that  all 
injuries  not  provided  for  were  de- 
clared by  the  legislature  to  be  conse- 
quential, and,  therefore,  rot  subject  to 
compensation.' 

"  In  Gould  on  Waters,  Section  204, 
after  declaring  the  right  of  riparian 
proprietors  to  have  the  stream  'flow 
as  it  is  wont  by  nature,  without  ma- 
terial diminution  or  alteration,'  it  is 
maintained  that:  'They  may  insist 
that  their  rights  to  thus  use  the  water 
shall  be  regarded  and  protected  as 
property.  The  right  to  use  the  water 
in  its  natural  flow  is  not  a  mere  ease- 
ment or  appurtenance,  but  is  insep- 
arably annexed  to  the  soil  itself.  It 
does  not  depend  upon  appropriation 
or  presumed  grant  from  long  acqui- 
escence on  the  part  of  other  riparian 
proprietors  above  and  btlow,  but  ex- 
ists jure  nature  as  parcel  of  the  land.' 

"  Wood  on  Nuisances,  Section  332, 
speaking  of  the  property  rights  of 
riparian  owners,  says,  that  they  arc 
rights  'in  the  owner  of  the  soil  which 
cannot  be  violated  with  impunity; 
rights  which  are  distinct  from  those 
enjoyed  by  the  public  generally,  and 
which  exist  not  because  cf  any  special 
property  in  the  water,  but  because  of 
the  ownership  of  the  land  over  or 
through  which  it  flows,  and  the  rights 
which  are  necessarily  created  there- 
by.' These  property  rights,  it  is  said 
in  the  next  section,  'may  be  the  sub- 
ject of  sale  or  lease  like  the  land 
itself.'  And  in  section  427,  speaking 
more  directly  to  the  question  involved 
in  this  case,  the  author  says:      'The 


463 


§329 


Watees — Continued. 


pollution  of  water  by  artificial  drain- 
age which  causes  sewage  to  flow  into 
a  stream,  spring  or  well,  whether  done 
by  a  municipal  corporation  or  an  in- 
dividual, constitutes  a  nuisance  which 
entitles  the  owner  to  damages  there- 
for, the  rule  being  that  municipal  cor- 
poration has  no  more  right  to  injure 
the  waters  of  a  stream  or  the  prem- 
ises of  an  individual  than  a  natural 
person.' 

"This  subject  is  discussed  in  Angel  1 
on  Water  Courses,  where  the  doctrine 
announced  in  the  quotations  already 
made  from  other  standard  authors  is 
fully  upheld.  In  Sections  457,  458, 
that  author  says :  'Among  the  va- 
riety of  legal  titles  which,  in  this 
country,  have  often  been  involved  in 
controversies  respecting  the  rights  of 
riparian  proprietors  on  inland  streams 
and  rivers,  is  the  important  one  enti- 
tled "eminent  domain,"  or  the  right 
which  tlie  government  retains  over  the 
estates  of  individuals  to  appropriate 
them  to  public  use.  It  is  obvious, 
that  the  government  of  no  state  can 
administer  its  public  affairs  in  the 
most  beneficial  manner  to  the  com- 
munity at  large,  if  it  cannot,  on  par- 
ticular emergencies  and  for  public 
utility,  exercise  at  least  a  qualified 
power  of  disposing  of,  or  of  impairing 
in  value,  the  property  of  an  individual 
citizen.  To  this  power,  according  to 
Vattel  "men  have  impliedly  yielded, 
though  it  has  not  been  expressly 
reserved."  But  it  is  a  rule  founded  in 
equity,  and  is  laid  down  by  jurists 
as  an  acknowledged  principle  of  uni- 
versal law,  that  a  provision  for  com- 
pensation is  a  necessary  attendant  on 
the  due  exercise  of  the  power  of  the 
lawgiver  to  deprive  an  individual  of 
his  property  without  his  consent.' 
Section  458:      'In  England,  notwith- 


standing the  transcendant  power  of 
its  parliament,  the  law  on  this  subject 
has  been  administered  on  the  above 
just  and  equitable  principles.  In  the 
familiar  instance  of  an  act  of  parlia- 
ment, for  promoting  some  specific  ob- 
ject or  undertaking  of  a  public  na- 
ture as  a  turnpike,  navigation,  canal, 
or  railway,  the  legislature  scruple  to 
interfere  with  private  property  and 
compel  the  owner  of  the  land  to  alien- 
ate it,  without  providing  a  reasonable 
price  and  compensation  for  so  doing. 
"If  a  new  road,"  says  Blackstone, 
"were  to  be  made  through  the  grounds 
of  a  private  person,  it  might  perhaps 
be  extensively  beneficial  to  the  pub- 
lic; but  the  law  permits  no  man,  or 
set  of  men,  to  do  this  without  consent 
of  the  owner  of  the  land.  In  vain 
may  it  be  urged  that  the  good  of  the 
individual  ought  to  yield  to  that  of 
the  community;  for  it  would  be  dan- 
gerous to  allow  any  private  man,  or 
even  public  tribunal,  to  be  the  judge 
of  this  common  good,  and  to  decide 
whether  it  be  expedient  or  no.  Be- 
sides, the  public  good  is  in  nothing 
more  essentially  interested,  than  in 
the  protection  of  every  individual's 
private  rights,  as  modeled  by  the  mu- 
nicipal law.  In  this,  and  in  similar 
cases,  the  legislature  alone,  can,  and 
indeed  frequently  does,  interpose,  and 
compel  the  individual  to  acquiesce. 
But  how  does  it  interpose  and  compel  t 
Not  by  absolutely  stripping  the  sub- 
ject of  his  property  in  an  arbitrary 
manner;  but  by  giving  him  a  full  in- 
demnification and  equivalent  for  the 
injury  thereby  sustained.  The  public 
is  considered  as  an  individual,  treat- 
ing with  an  individual  for  exchange. 
All  that  the  legislature  does,  is  to 
oblige  the  owner  to  alienate  his  pos- 
sessions for  a  reasonable  price:    and 


464 


Waters — Continued. 


§329 


even  this  is  an  extension  of  power 
which  the  legislature  indulges  with 
caution." 

"It  would  not  be  a  profitable  exten- 
sion of  this  opinion  to  quote  from 
the  numerous  cases  cited  in  the  text 
books  already  extensively  quoted  to 
sustain  the  text.  The  substance  of 
the  many  learned  opinions  of  able 
courts  is  given  in  the  quotations  al- 
ready made.  We  will  add  to  them 
only  a  brief  extract  from  the  able 
opinion  of  Ruger,  C.  J.,  in  Seifert  v. 
City  of  Brooklyn,  101  N.  Y.  136,  144: 
'It  is  a  principle  of  the  fundamental 
law  of  the  state,'  says  this  learned 
judge,  'that  the  property  of  indi- 
viduals cannot  be  taken  for  public 
use  except  upon  the  condition  tnat 
just  compensation  be  made  therefor, 
and  any  statute  conferring  power 
upon  a  municipal  body,  the  exercise 
of  which  results  in  the  appropriation, 
destruction,  or  physical  injury  of 
private  property  by  such  body,  is  in- 
operative and  ineffectual  to  protect  it 
from  liability  for  the  resultant  dam- 
ages, unless  some  adequate  provision 
is  contained  in  the  statute,  for  making 
such  compensation.  The  immunity 
which  extends  to  the  consequences, 
following  the  exercise  of  judicial  or 
discretionary  power,  by  a  municipal 
body  or  other  functionary,  presup- 
poses that  such  consequences  are  law- 
ful in  their  character,  and  that  the 
act  performed  might  in  some  manner 
be  lawfully  authorized.  When  such 
power  can  be  exercised  so  as  not  to 
create  a  nuisance,  and  does  not  re- 
quire the  appropriation  of  private 
property,  to  effectuate  it,  the  power 
to  make  such  an  appropriation  or 
create  such  nuisance  will  not  be  in- 
ferred from  the  grant.  Where,  how- 
ever, the  acts  done  are  of  such  a  na- 


ture  as   to   constitute  a    positive   in- 
vasion of  the  individual  rights  guar- 
anteed by  the  constitution,  legislative 
sanction  is  ineffectual  as  a  protection 
to    the    persons    or    corporation    per- 
forming such  acts  from  lesponsibility 
for     their     consequences.       Radcliff's 
Exrs.  v.  Mayor,  5  N.  Y.  195.     It  has 
been    sometimes    suggested    that    the 
principle    illustrated    in    the    maxim, 
"  salis  populi  est  supremo,  lex,"  may 
be  applied  to  and  will  shield  the  per- 
petrators, from  liability  for  damages 
arising  through   the  exercise  of  such 
power,    by   a    municipal    corporation, 
but   we   apprehend    that   this   maxim 
cannot  be   thus   invoked.      Wilson    v. 
Mayor,   1  Denio,  595.  The  case  where 
such  a   doctrine   can  be  properly  ap- 
plied must,  from  the  very  nature  of 
the  principle,   be  confined  to  circum- 
stances of  sudden  emergency,  threat- 
ening   disaster,    public   calamity    and 
precluding   a    resort    to   remedies    re- 
quiring time  and  deliberation.    Whar- 
ton on  Leg.  Max,  89;  Mayor  v.  Lord, 
17   Wend,   285.      It   is   suggested    (in 
the   latter   case)    that    even    in    such 
an  event  under  the  principles  of  the 
constitution,  the  public  would  be  lia- 
ble for  the  damages  inflicted.     How- 
ever this  may  be,  we  are  quite  clear 
that  the  theory  that  a  municipal  cor- 
poration  has  the   right  in  prosecut- 
ing a  scheme  of  improvements,  to  ap- 
propriate      without        compensation, 
either    designedly    or     inadvertantly, 
the  permanent  or  occasional  occupa- 
tion   of    a    citizen's    property,    even 
though  for  the  public  benefit,  cannot 
be   supported   upon   the   principle    re- 
ferred to.      If  the  use  of   such   prop- 
erty is  required  for   public  purposes, 
the  constitution  points  out  the  way 
in   which    it   may  be   acquired,   when 
there    is    no   such  imminence   in   the 


4G5 


329 


Waters — Continued. 


danger  apprehended  as  precludes  a 
resort  to  the  remedy  provided,  and  the 
only  mode  by  which  it  can  be  lawfully 
taken  in  such  cases,  is  that  afforded 
by  the  excuse  of  the  right  of  eminent 
domain." 

"There  appears  to  be  no  diversity  of 
opinion  upon  the  proposition  that 
riparian  rights  are  property  that  may 
be  the  subject  of  bargain  and  sale, 
either  with  or  separate  from  the 
land;  that  these  rights  constitute  a 
part  of  the  owner's  estate  in  the 
land,  and  materially  enter  into  the 
actual  value;  and  that  any  injurious 
invasion,  or  impairment  of  those 
rights  amounts  to  a  taking  of  the 
owner's  property.  It  follows  that  no 
legislative  sanction  can  justify  the 
taking  of  such  property,  either  direct- 
ly or  indirectly,  though  it  be  required 
for  a  public  use,  without  adequate 
provision  for  a  just  indemnity  to  the 
owner.  To  entitle  the  owner  to  such 
indemnity,  it  is  not  necessary  that  his 
entire  interest  in  the  particular  prop- 
erty be  taken.  The  value  of  prop- 
erty consists  in  the  owner's  absolute 
right  of  dominion,  use,  and  disposi- 
tion for  every  lawful  purpose.  This 
necessarily  excludes  the  power  of 
others  from  exercising  any  dominion, 
use  or  disposition  over  it.  Hence,  any 
physical  interference  by  another,  with 
the  owner's  use  and  enjoyment  of  his 
property,  is  a  taking  to  that  extent. 
To  deprive  him  of  any  valuable  use  of 
his  land  is  to  deprive  him  of  his  land, 
protanto.  So  that,  the  principle  of 
the  constitution  is  as  applicable  where 
the  owner  is  partially  deprived  of  the 
uses  of  his  land,  as  where  he  is  wholly 
deprived  of  it.  Taking  a  part  is  as 
much  forbidden  by  the  constitution 
as  taking  the  whole.  This  principle 
has  been  maintained  by  the  former  de- 


cisions of  this  court.  In  Reeves  v. 
Treasurer,  8  Ohio  St.  333,  346,  where 
the  use  sought  was  for  draining  pur- 
poses, this  court  said:  'The  land  oc- 
cupied by  the  ditch  and  its  banks  is 
not,  it  is  true,  wholly  appropriated. 
The  owner  may  still  use  the  ditch 
itself  for  purposes  of  irrigation,  for 
watering  stock,  or  may  perhaps  make 
it  serve  the  purpose  of  a  fence.  He 
may  grow  timber  and  shrubbery  on 
its  banks.  But  his  dominion  over  it 
— his  power  of  choice  as  to  the  uses 
to  which  he  will  devote  it,  are  mater- 
ially limited;  in  short,  other  parties 
acquire  a  permanent  easement  in  it. 
An  easement  is  property;  and  to  the 
extent  of  such  easement,  it  is  clear 
to  us  that  private  property  is  taken, 
within  the  meaning  and  spirit  of  the 
constitutional  prohibition.  The  de- 
cisions in  other  states,  on  questions 
bearing  on  this  point,  seem  not  to  have 
been  uniform.  Sedgwick  on  Const. 
Law,  519  et  seq.  But  the  doctrine 
here  maintained  is  settled,  in  Ohio, 
by  repeated  adjudications,  and  on 
principles  which,  we  think,  cannot  be 
shaken.  Crawford  v.  Delaware,  7 
Ohio  St.  459.  And  see  Railroad  Co. 
v.  Commissioners,  63  Ohio  St.  23.'  " 

"There  is  a  line  of  authorities  which 
sustain  the  right  of  action  in  cases 
like  the  one  before  us,  and  place  it 
upon  the  ground  that  such  acts  as 
those  complained  of  here  constitute  a 
nuisance,  which  municipal  corpora- 
tions cannot,  any  more  than  individu- 
als, be  allowed  to  create  or  maintain. 
To  this  proposition,  Judge  Dillon,  in 
his  work  on  Municipal  Corporations, 
Section  1,047,  adds  the  weight  of  nis 
great  authority:  'It  is  perhaps  im- 
possible to  reconcile  all  of  the  cases 
on  this  subject,  and  courts  of  the 
highest  respectability  have  held  that 


466 


Waters — Continued. 


329 


if  the  sewer,  whatever  its  plan,  is  so 
constructed  by  the  municipal  authori- 
ties as  to  cause  a  positive  and  direct 
invasion  of  the  plaintiff's  private 
property,  as  by  collecting  and  throw- 
ing upon  it,  to  his  damage,  water  or 
sewage  which  would  not  otherwise 
have  flowed  its  way  there,  the  corpor- 
ation is  liable.  This  exception  to  the 
general  doctrine,  when  properly  lim- 
ited and  applied,  seems  to  be  founded 
on  sound  principles,  and  will  have  a 
salutary  effect  in  inducing  care  on 
the  part  of  the  municipality  to  pre- 
vent such  injuries  to  private  prop- 
erty, and  will  operate  justly  in  giv- 
ing redress  to  the  sufferer  if  such  in- 
juries are  inflicted.  Accordingly 
though  a  municipality  having  the 
power  to  construct  drains  and  sewers 
may  lawfully  cause  them  to  be  built 
so  as  to  discharge  their  refuse  mat- 
ter into  the  sea,  or  natural  stream  of 
water,  yet  this  right  must  be  so  ex- 
ercised as  not  to  create  a  nuisance, 
public  or  private.  If  a  public  nui- 
sance is  created,  the  public  has  a 
remedy  by  a  public  prosecution;  and 
any  individual  who  suffers  special  in- 
jury therefrom  may  recover  therefor 
in  a  civil  action.  If,  therefore,  de- 
posits from  sewers  constructed  by  a 
city  cause  a  peculiar  injury  to  the 
owner  of  a  wharf  or  dock,  by  pre- 
venting or  materially  interfering  with 
the  approach  of  vessels  and  the  ac- 
customed and  lawful  use  of  the  wharf 
or  dock,  the  city  is  liable  to  the  lat- 
ter  in   damages.'  " 

"In  Wood  on  Nuisances,  Section 
427,  the  rule  is  stated  as  follows: 
'  The  pollution  of  water  by  artificial 
drainage  which  causes  sewage  to  flow 
into  a  stream,  spring  or  well,  whether 
clone  by  a  municipal  corporation  or  an 
individual,     constitutes     a     nuisance 


which  entitles  the  owner  to  damages 
therefor,  the  rule  being  that  a  mu- 
nicipal corporation  has  no  more 
right  to  injure  the  waters  of  a 
stream  or  the  premises  of  an  individ- 
ual than  a  natural  person.  .  .  . 
The  pollution  of  water  by  discharging 
waste  from  mills  and  manufactories, 
or,  indeed,  in  any  way,  creates  an  ac- 
tionable nuisance,  and  the  legislature 
has  no  power  to  authorize  the  pol- 
lution of  the  water  of  a  stream  with- 
out compensation  to  the  owners  of 
the  land  through  which  such  stream 
flows,  as  such  use  is  a  taking  of  prop- 
erty within  the  meaning  of  the  con- 
stitution. It  has  been  held  in  nu- 
merous cases  that  a  municipal  cor- 
poration is  liable  for  the  wrongful 
diversion  of  surface  water  from  its 
natural  channel  to  the  premises  of  an- 
other, as  well  as  for  discharging  its 
drainage  or  sewage  upon  private 
property.' 

"Other  commentators  of  acknowl 
edged  authority  maintain  the  same 
rule.  A  few  only,  of  the  many  re- 
ported cases  which  sustain  this  doc- 
trine, will  be  noticed.  The  case  of 
Chapman  v.  City  of  Rochester,  110 
N.  Y.  273.  It  is  not  substantially 
different  from  the  one  before  us. 
There  'plaintiff  owned  and  occupied 
certain  premises,  across  which  ran  a 
stream  fed  by  springs  of  pure  water. 
He  collected  the  water  of  said  stream 
into  an  artificial  basin  and  used  it  for 
domestic  purposes  and  the  propaga- 
tion of  fish,  and  in  winter  procured 
from  it  a  supply  of  ice.  Defendant 
thereafter  constructed  sewers,  through 
which,  not  only  surface  water,  but  the 
sewage  from  houses  and  water  closets 
were  discharged  into  said  stream 
above  plaintiff's  land,  rendering  its 
water  unfit  for  use  and  covering  its 


407 


§329 


Watebs — Continued. 


banks  with  filthy  and  unwholesome 
sediment.  Held,  that  these  acts  con- 
stituted a  nuisance  to  restrain  which, 
as  well  as  to  recover  his  personal 
damages,  plaintiff  could  maintain  an 
action.'  Morgan  v.  City  of  Danbury, 
67  Conn.  484,  is  much  like  the  pre- 
ceding case.  There  '  the  plaintiff,  a 
riparian  mill  proprietor,  alleged  that 
the  defendant,  without  making  him 
any  compensation  or  attempting  to 
acquire  any  of  his  rights,  was  dis- 
charging and  threatening  to  continue 
to  discharge  in  still  greater  quan- 
tity, waste  matter,  sewage,  and  other 
noxious,  corrupt  substances  from  its 
sewers  into  the  stream  so  as  to  pol- 
lute it  and  seriously  damage  his  land 
and  mill  privilege;  that  such  dis- 
charge poisoned  and  corrupted  the  air 
of  the  neighborhood  and  endangered 
the  health  of  the  plaintiff,  his  work- 
men and  others,  and  had  already  part- 
ly filled  his  dam  with  filth  and  pre 
vented  him  from  disposing  of  his  land 
for  building  purposes;  and  prayed  for 
an  injunction  against  the  continu- 
ance of  the  nuisance  and  to  restrain 
the  pollution  of  the  waters  of  the 
stream.  The  trial  court  found  these 
allegations  to  be  true,  that  the  plaint- 
iff's injuries  could  not  be  adequately 
compensated  in  damages,  and  that  the 
acts  complained  of  constituted  a  pub- 
lic nuisance,  and  granted  an  injunc- 
tion restraining  the  defendant,  after 
twenty  months  after  the  date  of  the 
decree,  from  discharging  any  sewage 
into  the  stream  above  the  plaintiff's 
premises,  and  from  polluting  the  wa- 
ters by  any  such  discharge.'  And  it 
was  there  held  'that  the  right  to  de- 
posit a  thing  in  any  place  must  al- 
ways be  dependent  not  only  on  the 
nature  of  the  thing  deposited,  but  on 
the  nature   of  the   place   in   question 


and  the  uses  to  which  that  has 
already  been  put;  and  that  if  the 
stream  was  from  whatever  cause,  in 
such  a  condition  that  the  defendant'9 
discharge  of  sewage  there  worked  a 
nuisance,  it  had  no  right  to  use  the 
stream  for  such  purpose.'  And  see 
Seifert  v.  City  of  Brooklyn,  supra  j 
City  of  Jacksonville  v.  Doan,  145 
111.  23;  Inmanv.  Tripp.  Ireas.  11  R.  I. 
520;  Good  v.  Altoona,  162  Pa.  St. 
493;  Owens  v.  Lancaster,  182  Pa.  St. 
257;  Mason  v.  City  of  Mattoon,  95 
111.  App.  525.  The  right  of  the 
plaintiff  to  the  relief  awarded  him 
by  the  judgments  of  the  lower  courts, 
is  sustained  by  the  case  of  Rhodes  v. 
City  of  Cleveland,  10  Ohio,  160.  That 
suit  was  brought  against  the  city  to 
recover  damages  for  so  cutting-  its 
drains  as  to  cause  the  water  to  over- 
flow and  wash  away  the  plaintiff's 
lands.  The  trial  court  charged  the 
jury  that  the  plaintiff  could  not  re- 
cover, 'unless  he  showed  either  that 
the  city  acted  illegally,  or  if  within 
the  scope  of  authority,  that  they  acted 
maliciously.'  In  reversing  the  judg- 
ment founded  on  the  verdict  for  the 
defendant,  this  court  held  that: 
'  Corporations  are  liable  like  indi- 
viduals for  injuries  done,  although 
the  act  was  not  beyond  their  lawful 
powers.'  The  grounds  of  the  decision 
are  stated  in  the  opinion  by  Lane,  C. 
J.,  as  follows:  'That  the  rights  of 
one  should  be  so  used  as  not  to  im- 
pair the  rights  of  another,  is  a  prin- 
ciple of  morals,  which,  from  very  re- 
mote ages,  has  been  recognized  as  a 
maxim  of  law.  If  an  individual,  ex 
ercising  his  lawful  powers  commit  an 
injury,  the  action  on  the  case  is  the 
familiar  remedy:  if  a  corporation, 
acting  within  the  scope  of  its  au- 
thority,   should    work    wrong    to    an- 


468 


"Waters — Continued. 


§  o21> 


other,  the  same  principle  of  ethics  de- 
mands of  them  to  repair  it,  and  no 
reason  occurs  to  the  court  why  the 
same  remedy  should  not  be  applied  to 
compel  justice  from  them.' 

"That  decision  is  founded  upon  the 
broad    principles    of    common    justice 
and   constitutional    right.      It   is    ap- 
plicable to,  and  decisive  of  this  case. 
No  argument  can  be  required  to  prove 
that,  if  the  plaintiff's  riparian  rights 
are  property  for  which,  when  injured 
by  an  individual  the  latter  may  not 
be  held  liable  therefor   in  an  action, 
they  are  none  the  less  property  when 
so   injured   or   taken    by  the    public; 
nor  that  those  acts  which,  when  done 
by  an  individual  constitute  a  depriva- 
tion of  the  owner  of  his  property,  are 
equally  so  when  done  for  the  benefit 
of  an  aggregation  of  individuals  that 
go  to  make  up  the   population  of  a 
municipal   corporation.      Nor,    can    it 
add  anything  to  the  defendant's  pre- 
rogatives, nor  take  anything  from  the 
plaintiff's   rights,   to   call   the   injury 
he    has    suffered    consequential.     The 
owner  is  nevertheless  deprived  of  sub- 
stantial property  interests,  and  by  no 
name  by  which  the  acts  that  produce 
that  effect  may  be  called,  can  destroy 
or  diminish  his  constitutional  right  to 
indemnity.    The  question  whether  the 
injury   constitutes  a   taking  of  prop- 
erty, depends   upon   its   effect  on  the 
owner's    proprietary   rights,   and    not 
upon  the  length  of  time  necessary  to 
produce  that  effect.     They  may  be  as 
effectually   taken   by   continuing  acts 
extending  over  a   considerable  period 
of  time,  as  by  a  single  act. 

"  The  case  of  Rhodes  v.  Cleveland, 
supra,  has  been  repeatedly  approved 
and  followed  in  subsequent  decisions 
of  this  court.  In  McCombs  v.  Akron, 
15  Ohio,  474,  479,  Read,  J.,  after  stat- 


ing that    '  the   sole  question   in   this 
case  is,  whether  a  municipal  corpora- 
tion can  be  made  liable  for  an  injury 
resulting  to  the   property  of  another, 
by  an  act  of  such  corporation,  strictly 
within  the  scope  of  its  corporate  au- 
thority,  and   unattended   by  any   cir- 
cumstances  of   negligence   or  malice,' 
with    his    usual    clearness    and    force 
says:      '  The  case  of  Rhodes  v.  City  of 
Cleveland,  10  Ohio,  159,  with  admira- 
ble good  sense  and  strength  of  reason, 
answers    this    question,    by    asserting 
that  corporations  are  liable,  like   in- 
dividuals,  for   injuries,   although   the 
act  was  not  beyond  their  lawful  pow- 
ers.     The   late   learned   Ch.   J.   Lane, 
who   pronounced    the   opinion    of   the 
court   in   that   instance,   accounts  for 
the  older  cases,  upon  the  ground  that 
courts  were  hampered  by  the  mystic 
notion  attached  to  corporate  seals,  by 
which    corporations    withdrew    them- 
selves from  responsibility,  and  cast  it 
upon   their   agents.     A   sort  of  tran 
scendentalism    which    enveloped    both 
the    courts     and     the     profession     in 
a    mist    growing     out    of     the     airy 
nothingness      of      the    subject      mat- 
ter,      enabling       corporations,       like 
the     pestilence     which     walketh     un- 
seen,   to    do    their    mischief    and    es- 
cape   their    responsibility.      It    is   re- 
freshing to  the  jurist,  and  important 
to  the  rights  of  individuals,  that  these 
confused    notions    are    yielding    to    a 
clearer  light  and  more  solid  reason.' 
The  learned  judge  further  said:     'We 
recognize  the  doctrine  of  that  case,  as 
laid   down  by  this  court,  as   founded 
in    the  most   solid   reason,    right  and 
morals,  and  a  majority  of  the  court 
have  not  the  slightest  disposition   to 
impair  its  obligation,  but,  by  the  light 
of  such  example  and  assurance,  hope 
that  the  whole  subject  matter  of  cor* 


4G9 


§  329 


Waters — Continued. 


porations  will  in  the  end  be  reduced 
to  the  control  of  incontestible  princi- 
ple.' In  Dayton  v.  Pease,  4  Ohio  St. 
80,  94,  speaking  of  both  of  the  above 
cases,  the  liability  of  a  municipal  cor- 
poration, acting  through  subordinate 
agents,  within  the  scope  of  its  au- 
thority, and  without  malice  or  negli- 
gence, was  enforced,  where  the  acts 
of  such  agents  resulted  in  injury  to 
the  property  of  private  individuals. 
The  propriety  of  investing  such  cor- 
porations with  the  power  to  improve 
their  streets,  resulting  often  in  indi- 
rect injury  to  private  property,  is  con- 
ceded, but  the  cases  rest  upon  the 
clear  principle  of  right  and  justice, 
which  requires  compensation  to  go 
hand  and  hand  with  public  benefit. 
And,  when  in  the  lawful  exercise  of 
these  powers,  private  property  must 
be  injured  for  the  common  benefit  of 
all,  all  should  be  held  liable  to  make 
reparation;   and,  in  the  view  of  the 


judges  who  concurred  in  these  de- 
cisions, the  principle  was  not  with- 
out support  from  that  section  of  the 
constitution  of  the  state,  which  se- 
cures the  inviolability  of  private  prop- 
erty.' The  court,  in  Cohen  v.  Cleve- 
land, 43  Ohio  St.  190,  193,  is  not  less 
emphatic  in  its  approval  of  the  doc- 
trine of  Rhodes  v.  Cleveland,  supra. 
And  see  Youngstown  v.  Moore,  30 
Ohio  St.  133,  142,  143.  It  is  true  that 
the  decision  of  Rhodes  v.  Cleveland,  is 
not  put  precisely  on  constitutional 
ground,  though  that  ground  is  ad- 
vanced in  subsequent  cases  approving 
the  decision. 

"  We  are  satisfied,  after  the  most 
careful  consideration  we  have  been 
able  to  give  this  case,  that  the  judg- 
ments below  are  correct,  and  they  are 
affirmed.  Marshall,  C.  J.,  and  Bur- 
kett,  J.,  concur."  City  of  Mansfield 
v.  Balliett,  65  Ohio  St.  451,  479,  63 
N.  E.  86. 


470 


CHAPTER   XV. 

Municipal  Powers  and  Liabilities. 

Section  330.  Municipal   powers  generally. 

331.  Boards  of  Health. 

332.  Power  of  municipality  to  declare  things  nuisances. 

333.  Same  subject  continued. 

334.  Same  subject.— Where  there  is  a   doubt  whether  a  thing  is  a 

nuisance. 

335.  Ordinance  must  not  discriminate.-Must  be  uniform  in  operation. 

336.  Same  subject— Where  ordinance  prohibits  unless  permission  ob- 

tained. 

337.  Same    subject-Ordinance    requiring    permit    for    processions- 

Parades,  &c. 

338.  Municipal  power  to  declare  a  cemetery  a  nuisance. 

339.  Validity  of  particular  ordinances. 

340.  Same  subject  continued. 

341.  Power  of  municipality  as  to  erection  of  structures.-Authonza- 

tion  by  legislature. 

342.  Powers  as  to  structures  or  erection  of  or  establishment  of  fire 

limits— Want  of  legislative  authorization. 

343.  Same  subject.— Continued. 

344.  Same   subject.— Conclusion. 

345.  Municipal  powers  to  summarily  abate— Generally. 
346    Limitations  on  power  to  summarily  abate  or  remove. 

347.  Municipal  authorities  proceed  at  their  peril  in  summary  abate- 

ment  of  nuisance. 

348.  Particular  instances  of  power  of  municipality  to  abate  nuisances. 

349  Right  of  municipality  to  destroy  building. 

350  Same  subject.-Where  nuisance  consists  in  use  of  building  only 

351  Same  subject-Right  of  owner  of  building  to  injunction 

352*.  Property  destroyed  as  a  nuisance-Owner  no  right  to  compen- 
sation. 

353.  Municipal  liability  for  nuisances.— Generally.  ...... 

354.  Same  subject-Distinction  between  powers  ministerial  and  legis- 

lative. 

355.  Municipal  liability.-Public  works.-Particular  instances. 

356.  Same  subject.— Continued. 

357.  Liability   of    municipality    where   it   fails   to   remove   or    abate 

nuisance. 

358.  Same  subject.— Continued. 

471 


330 


Municipal  Powers  and  Liabilities. 


§  330.  Municipal  powers  generally.1 — A  municipality  can  only 
exercise  such  powers  as  have  been  conferred  upon  it  by  the  legis- 
lature. Its  powers  are  derived  from  this  source  and  it  is  limited 
in  the  exercise  of  any  power  to  such  as  has  been  clearly  delegated 
to  it  either  by  the  act  creating  it  or  by  special  acts  or  to  a  power 
which  arises  by  necessary  implication  out  of  some  delegated 
power.2  And  the  power  and  jurisdiction  of  a  municipal  corpora- 
tion are  confined  to  its  own  limits  and  to  its"  own  internal  concerns 
and  its  by-laws  are  binding  upon  none  but  its  own  members  and 
those  who  are  properly  within  its  jurisdiction.3  A  city  ordinance, 
however,  which  prohibits  the  creation  or  maintenance  of  a  nuisance 
and  makes  it  a  misdemeanor  to  maintain  one  is  held  not  to  be  in- 
valid or  unconstitutional  because  the  general  statutes  of  the  State 
provide  for  the  conviction  or  punishment  of  those  guilty  of  a  like 
offense.4 


y 


1.  Municipal  powers  as  to  particu- 
lar nuisances  and  ordinances  in  the 
exercise  of  such  powers  have  been 
treated  in  various  parts  of  this  work 
to  which  reference  is  made.  As  to 
nuisances  legalized  by  municipality 
see  §§  78-80  herein.  At  to  power  of 
legislature  to  delegate  authority  to 
municipality  to  declare  nuisances  see 
§  84  herein.  As  to  ordinances  as  to 
smoke  see  §§  150-154  herein.  As  to 
liability  of  municipal  corporations  for 
smells  creating  a  nuisance  see  §  169 
herein.  As  to  ordinances  relating  to 
animals  see  §§  197-199  herein.  As  to 
ordinance  relating  to  stables  or  cattle 
enclosures  see  §  210  herein.  As  to 
power  of  municipality  to  authorize  ob- 
structions in  highway  see  §§  210,  211 
herein.  As  to  power  of  municipality 
to  declare  things  in  highway  a  nui- 
sance see  §§  212,  213  herein.  As  to 
municipal  liability  for  nuisances  in 
highway  see  §  214  herein. 

2.  Exp.     Burnett,     30     Ala.     461; 
Waters  v.   Leech,   3  Ark.    110;  Pratt 


v.  Litchfield,  62  Conn.  112;  Knoxville 
v.  Chicago,  B.  &  Q.  R.  Co.,  83  Iowa, 
636,  50  N.  W.  61;  City  of  Keokuk  v. 
Scroggs,  39  Iowa,  447;  Clark  v.  Des 
Moines,  19  Iowa,  202,  87  Am.  Dec. 
423;  Watertown  v.  Mayo,  109  Mass. 
315,  12  Am.  Rep.  694;  Pine  City  v. 
Munch,  42  Minn.  342,  6  L.  R.  A.  763, 
44  N.  W.  197;  St.  Charles  v.  Nolle, 
51  Mo.  122,  11  Am.  Rep.  440;  Lawton 
v.  Steele,  119  N.  Y.  226,  23  X.  E.  878, 
7  L.  R.  A.  134;  Troy  v.  Winters,  4 
Thomp.  &  C.  (X.  Y.)  256.  See  §§ 
78-80,  herein. 

A  corporation  can  exercise  no 
powers  not  clearly  delegated  in 
the  act  of  incorporation  or  arising 
by  necessary  implication  out  of  some 
delegated  powers.  Miller  v.  Burch, 
32  Tex.  208,  5  Am.  Rep.  242. 

3.  Gass  v.  Greeneville,  4  Sneed 
(Tenn.),  61. 

4.  People  v.  Detroit  White  Lead 
Works,  82  Mich.  471,  46  X.  W.  735, 
9  L.  R.  A.  722;  People  v.  Hanrahan, 
75  Mich.  611. 


472 


Municipal  Powers  and  Liabilities. 


331 


§  331.  Boards  of  health. — Powers  such  as  are  ordinarily  pos- 
sessed by  municipalities  as  to  nuisances  endangering  public  health 
or  safety  are  in  many  cases,  either  by  virtue  or  powers  conferred 
upon  the  municipality  or  by  virtue  of  some  express  statute,  vested 
in  local  boards  of  health,  which  may  generally  act  the  same  as  the 
municipality  would  in  such  cases  subject  to  such  limitations  as  may 
be  imposed  by  the  municipal  or  statutory  power  creating  them. 
They  are  generally  authorized  to  regulate  in  a  reasonable  manner 
such  matters  as  affect  the  public  health  or  safety,  or  to  remove 
or  abate  nuisances  affecting  or  endangering  the  same.  They  are 
also  in  many  cases  vested  with  powers  in  regard  to  special  matters 
As  a  general  rule  the  same  general  principles  control  in  determin- 
ing the  validity  of  their  acts  as  control  in  the  case  of  the  exercise  of 
similar  powers  by  the  municipality,  though  in  each  case,  resort 
must  be  had  to  the  particular  laws  by  which  they  are  created  and 
under  which  they  receive  their  authority.5 


5.  See,  as  to  the  source  and  extent 
of  and  the  manner  in  which  they  may- 
exercise  their  powers,  Parker  &  Wor- 
thington  on  Public  Health  and  Safety, 
§§  70-176. 

As  to  powers  of  board  of 
health  see  Gaines  v.  Waters,  64  Ark. 
609,  44  S.  W.  353 ;  Raymond  v.  Fish, 
51  Conn.  80,  50  Am.  Rep.  3;  Martin 
v.  Board  of  Commissioners,  27  Ind. 
App.  98,  60  N.  E.  998;  Stowe  v. 
Heath,  179  Mass.  385,  60  N.  E.  975; 
Chase  v.  Middleton,  123  Mich.  647, 
82  N.  W.  612;  State,  State  Bd.  of 
Health  v.  Jersey  City,  55  N.  J.  Eq. 
116,  35  Atl.  835,  aff'd  in  55  N.  J.  Eq. 
591,  39  Atl.  1114;  North  Brunswick 
Twp.  Bd.  of  Health  v.  Lederer  (N.  J. 
Ch.),  29  Atl.  444;  Hutton  v.  City  of 
Camden,  39  N.  J.  L.  122,  23  Am.  Rep. 
203;  State,  Raritan  Twp.  Bd.  of 
Health  v.  Henzler  (N.  J.),  41  Atl. 
228;  Cartwright  v.  Board  of  Health 
of  Cohoes,  39  App.  Div.  (N.  Y.)  69, 
56  N.  Y.  Suppl.  731;  Newtown  v. 
Lyons,  11  App.  Div.  (N.  Y.)    105,  42 


N.  Y.  Suppl.  241;  Rogers  v.  Barker, 
31  Barb.  (N.  Y.)  447;  Schoefflin  v. 
Calkins,  5  Misc.  R.  (N.  Y.)  159,  25 
N.  Y.  Suppl.  696;  Smith  v.  Baker,  3 
Pa.  Dist.  R.  626,  14  Pa.  Co.  Ct.  65; 
Philadelphia  v.  Lyster,  3  Pa.  Super. 
Ct.  475;  Adams  v.  Ford,  3  Pa.  Super. 
Ct.  239;  Barnett  v.  Laskey,  68  L.  J. 
Q.  B.  N.  S.  55. 

That  which  is  not  a  nuisance 
in  fact  cannot  be  made  a  nuisance 
by  a  mere  declaration  of  a  board  of 
health.  People,  Copcutt  v.  Yonkers 
Board  of  Health,  140  N.  Y.  1,  35  N. 
E.  320,  55  N.  Y.  St.  R.  4l6,  23  L.  R. 
A.  481,  37  Am.  St.  R.  522,  aff'g  71 
Hun,  84,  54  N.  Y.  St.  R.  317,  24  N. 
Y.  Suppl.  629. 

A  city  conncil  may  authorize 
the  board  of  health  to  abate  a 
nuisance  endangering  the  public 
health  where  power  is  conferred  by 
statute  upon  the  municipality  to 
cause  nuisances  to  be  abated  within 
the  jurisdiction  of  the  board  of  health 
and  to  establish  such  a   board   with 


473 


332 


Municipal  Powers  and  Liabilities. 


§  332.  Power  of  municipality  to  declare  things  nuisances. — 
In  the  absence  of  power  conferred  by  the  legislature 
upon  a  municipality  to  define  or  declare  what  is  a  nuisance  no 
power  is*  held  to  be  vested  in  it  to  declare  a  certain  act  or  omis- 
sion a  public  nuisance.6  And  though  the  power  may  be  conferred 
upon  a  municipal  corporation  to  declare,  prevent  and  abate  nui- 
sances, yet  this  will  not  justify  a  wanton  declaration  that  a 
particular  act,  thing  or  avocation  is  a  nuisance  which  unquestion- 
ably is  not  one.  The  power  must  be  exercised  in  a  reasonable 
manner  having  in  view  the  personal  and  property  rights  of  the 
individual  and  the  mere  fact  that  a  certain  thing  has  been  de* 
clared  by   the  municipal   authorities  to  be  a  nuisance  does  not 


such  power  "  as  shall  be  necessary  to 
secure  the  city  and  the  inhabitants 
thereof  from  the  evils  of  contagious, 
malignant  and  infectious  diseases." 
Gaines  v.  Waters,  64  Ark.  609,  44  S. 
W.  353. 

A  license  by  the  municipality 
to  carry  on  a  certain  trade  or  busi- 
ness, has  been  held,  in  Massachusetts, 
not  to  affect  the  right  of  the  board  of 
health  to  prohibit  by  order  the  exer- 
cise of  such  trade  at  the  place  desig- 
nated by  the  license.  City  of  Cam- 
bridge v.  Trelegan,  181  Mass.  565,  64 
N.  E.  204.  Compare  Nicoulin  v.  Low- 
ery,  49  N.  J.  L.  391,  8  Atl.  513. 

A  notice  to  abate  to  the  one 
maintaining  a  nuisance  may  be  neces- 
sary and  a  prerequisite  to  a  right  by 
the  board  ot  health  to  abate.  See  Hall 
v.  Staples,  166  Mass.  399,  44  N.  E. 
351;  St.  Louis  v.  Flynn,  128  Mo.  413, 
31  S.  W.  17;  Hutton  v.  City  of  Cam- 
den. 39  N.  J.  L.  122,  23  Am.  Eep. 
203;  Verder  v.  Ellsworth,  59  Vt.  354, 
10  Atl.  89;  Supervisors  of  River 
Thames  v.  Port  Sanitary  A.  of  Lon- 
don Port  (1894),  1  Q.  B.  647;  Hop- 
kins v.  Southwick  Local  Board  of 
Health,  L.  R.  24  Q.  B.  D.  712. 


Effect  of  error  of  judgment  by 
board  of  health.  It  is  decided  in 
Connecticut  that  where  boards  of 
health  are  vested  by  statute  with 
"  all  the  power  necessary  and  proper 
for  preserving  the  public  health  and 
preventing  the  spread  of  malignant 
diseases "  and  "  to  examine  into  all 
nuisances  and  sources  of  filth  injuri- 
ous to  the  public  health  and  cause  to 
be  removed  all  filth  found  within  the 
town  which  in  their  judgment  shall 
endanger  the  health  of  the  inhabi- 
tants" they  are  not  liable,  where 
they  act  in  good  faith  and 
with  proper  care  and  prudence, 
for  mere  errors  of  judgment  in 
causing  the  removal  as  a  nui- 
sance of  property  which  they  believed 
to  be  the  cause  of  the  prevalence  of 
a  malignant  disease.  Raymond  v. 
Fish,  51  Conn.  80,  50  Am.  Rep.  3. 

6.  St.  Paul  v.  Gilfillan,  36  Minn. 
298,  31  N.  W.  49.  See  Cole  v.  Kegler, 
64  Iowa,  59,  19  N.  W.  843.  As  to 
power  of  legislature  to  declare  things 
nuisances,  see  §§  81-83,  herein.  As 
to  delegation  by  legislature  of  such 
power  to  municipality,  see  §  84, 
herein. 


474 


Municipal  Powers  and  Liabilities. 


§333 


render  it  one  where  it  is  not  in  its  nature  within  the  common  law 
a  statutory  idea  of  a  nuisance.7 

§  333.  Same  subject  continued. — In  this  connection  it  has  been 
said  by  the  United  States  Supreme  Court  in  reference  to  an 
ordinance  declaring  a  certain  structure  a  nuisance:  "The  mere 
declaration   by  the  City   Council   of  Milwaukee,   that  a   certain 


7.  Ward  v.  City  of  Little  Rock,  41 
Ark.    526,    48    Am.    Eep.    40;      Des 
Plaines  v.  Poyer,  123  111.  348,   14  N. 
E.  677,  5  Am.  St.  R.  524;  Hermon  v. 
Chicago,    110   111.    400,    413,   51    Am. 
Rep.    698;   Evansville    v.   Miller,    146 
Ind.  613,  45  N.  E.   1054,  38  L.  R.  A. 
161;   Cole  v.  Kegler,  64  Iowa,  59,  19 
N.  W.  843;   Everett  v.  City  of  Coun- 
cil Bluffs,  46  Iowa,  66 ;   Opelousas  Bd. 
of  Aldermen  v.  Norman,  51  La.  Ann. 
736,   25    So.   401;   Waters   Pierce   Oil 
Co.  v.  New  Iberia,  47  La.   Ann.   803, 
17  So.  343;  Green  v.  Lake,  60  Miss. 
451;     Lake  v.  City  of   Aberdeen,  57 
Miss.    260;      St.    Louis    v.    Edward 
Heitzeberg  Packing  &  P.  Co.,  141  Mo. 
375,  42  S.  W.  954,  04  Am.  St.  R.  516, 
39  L.  R.  A.  551;   Kansas  City  v.  Mc- 
Aleer,  31  Mo.  App.  433;  New  Jersey 
B.  &  T.  Co.  v.  Jersey  City,  29  N.  J- 
L.  170;  Davis  v.  New  York,  14  N.  Y. 
524,  67  Am.  Dec.  186;  Griffin  v.  City 
of  Gloversville,  67  App.  Div.  (N.  Y.) 
403,   73  N.  Y.   Suppl.   684;   Brooklyn 
City  R.  Co.  v.  Furey,  4  Abb.  Pr.  N. 
S.    (N.  Y.)    364;   Pittsburg  v.  Keech 
&  Co.,  21  Pa.  Super.  Ct.  548,  554. 

An  ordinance  laust  not  impose 
unauthorized  restrictions  upon  the 
right  of  the  citizen  to  the  use  of  his 
property.  City  of  Newton  v.  Belger, 
143  Mass.  598,  10  N.  E.  464. 

An  injnnction  will  not  be 
granted  to  restrain  the  threatened 
violation  of  a  city  ordinance  declaring 


a  certain  act  a  nuisance,  where  it  is 
not  in  fact  one.  Warren  v.  Cava- 
nagh,  33  Mo.  App.  102 ;  City  of  Man- 
chester v.  Smyth,  64  N.  H.  380,  10 
Atl.  700;  Borough  of  Chambridge 
Springs  v.  Moses,  22  Pa.  Co.  Ct.  R. 
637.  Examine  Rand  v.  Wilber,  19  111. 
App.  395,  holding  that  the  erection 
of  a  privy  in  violation  of  a  municipal 
ordinance  would  be  enjoined. 

An  order  of  a  city  conneil 
which  declares  a  certain  structure  to 
be  a  nuisance  is  not  conclusive  of  the 
fact  in  an  action  against  the  owner 
by  an  individual  claiming  to  have 
sustained  private  damages  in  conse- 
quence of  such  structure.  Kallsen  v. 
Wilson,  80  Iowa,  229,  45  N.  W.  765. 

The  city  conneil  of  New  Or- 
leans has  been  held  to  be  vested  with 
a  discretion  in  declaring  what  is  a 
nuisance  which  will  not  be  inter- 
fered with  by  the  courts  unless  their 
action  has  been  manifestly  unreason- 
able or  oppressive,  invaded  private 
rights  and  transcended  the  power 
given  to  it.  State  v.  Heidenhain,  42 
La.  Ann.  483,  7  So.  621,  2  Am.  St. 
R.  388,  2  Am.  Ry.  &  Corp.  Rep.  733. 

The  action  of  the  board  of  su- 
pervisors of  San  Francisco  in  de- 
claring that  certain  materials  such  as 
garbage  are  nuisances  has  been  held 
to  be  conclusive  of  the  fact.  Sanitary 
Reduction  Works  v.  California  Reduc- 
tion Co..  94  Fed.  693. 


475 


/ 


§  334  Municipal  Powers  ais'd  Liabilities. 

structure  was  an  encroachment  or  obstruction,  did  not  make  it  so, 
nor  could  such  declaration  make  it  a  nuisance  unless  it  in  fact 
had  that  character.  It  is  a  doctrine  not  to  be  tolerated  in  this 
country,  that  a  municipal  corporation,  without  any  general  laws 
either  of  the  city  or  of  the  State,  within  which  a  given  structure 
can  be  shown  to  be  a  nuisance,  can,  by  its  mere  declaration  that 
it  is  one,  subject  it  to  removal  by  any  person  supposed  to  be  ag- 
grieved, or  even  by  the  city  itself.  This  would  place  every  house, 
every  business,  and  all  the  property  of  the  city,  at  the  uncontrolled 
will  of  the  temporary  local  authorities."  8  So,  where  an  ordinance 
declared  a  laundry  a  nuisance  it  was  said  by  the  court :  "  There  is 
nothing  tending  in  the  slightest  degree  to  show  that  this  laundry 
is,  in  fact,  a  nuisance,  and  the  uncontradicted  allegations  of  the 
petition  are  that  it  is  not.  So  far  as  appears,  it  is  only  made  a 
nuisance  by  the  arbitrary  declaration  of  the  ordinance  and  it  is 
beyond  the  power  of  the  common  council  by  its  simple  flat  to  make 
that  a  nuisance  which  is  not  so  in  fact.9  To  make  an  occupation 
indispensible  to  the  health  and  comfort  of  civilized  man,  and  the 
use  of  the  property  necessary  to  carry  it  on,  a  nuisance,  by  a  mere 
arbitrary  declaration  in  a  city  ordinance,  and  suppress  it  as  such, 
is  simply  to  confiscate  the  property  and  deprive  the  owner  of  it 
without  due  process  of  law.  It  also  abridges  the  liberty  of  the 
owner  to  select  his  own  occupation  and  his  own  methods  in  the 
pursuit  of  happiness,  and  thereby  prevents  him  from  enjoying 
his  rights,  privileges  and  immunities  and  deprives  him  of  equal 
protection  of  the  laws  secured  to  every  person  by  the  Constitution 
of  the  United  States."  10  It  has,  however,  been  decided  that  the 
action  of  a  municipality  in  declaring  a  thing  to  be  a  nuisance  may 
give  rise  to  a  prima  facie  presumption  of  its  being  a  nuisance.11 

§  334.  Same  subject — Where  there  is  doubt  whether  a  thing 
is    a    nuisance. — While  a  municipality  cannot  declare    that     a 

8.  Yates    v.    Milwaukee,    10    Wall.  10.  In   re  Sam  Kee,  31   Fed.  680, 
(U.  S.)  497,  19  L.  Ed.  984,  per  Mr.       681,  per  Sawyer,  J. 

Justice  Miller.  11.  State  v.  Marshall,  50  La.  Ann. 

9.  Yates   v.    Milwaukee,    10    Wall.       1176,   24    So.    186.       See   Council   of 
(U.  S.)  505.  Montgomery  v.   Hutchinson,    13  Ala. 

573. 

476 


Municipal  Powers  and  Liabilities.  §  335 

nuisance  which  is  clearly  not  one,  yet  the  power  of  a  municipality 
has  been  recognized  to  declare  a  certain  thing  a  nuisance  where 
there  is  a  doubt  whether  it  is  in  fact  a  nuisance  or  not.  So 
in  the  case  of  a  slaughterhouse  which  is  in  its  nature  a  nuisance, 
it  has  been  decided  that  a  declaration  by  ordinance  that  it  is  a 
nuisance  is  conclusive  of  the  fact.12 

And  it  has  been  likewise  so  held  of  an  ordinance  providing 
that  a  rock  crushing  machine  is  a  nuisance  where  maintained 
in  a  block  where  there  are  three  or  more  dwellings  which  are  occu- 
pied.13 

In  this  connection  the  remarks  of  the  court  in  a  recent  case  in 
Illinois  are  pertinent.  The  court  said :  "  We  do  not  conceive 
it  to  be  the  law  that  city  councils  or  boards  of  village  trustees 
may  conclusively  declare  that  to  be  a  nuisance  which  a  court, 
acting  upon  its  experience  and  knowledge  of  human  affairs,  would 
say  is  not  so  in  fact.  That  which,  however,  is  a  nuisance  because 
of  its  nature  or  inherent  qualities',  or  because  it  is  for- 
bidden by  law,  may  be  denounced  or  declared  a  nuisance  by 
an  ordinance  and  such  denunciation  will  be  deemed  conclusive. 
There  are  other  things,  trades,  occupations  and  callings  which,  be- 
cause of  their  nature  or  inherent  qualities  may  or  may  not  be 
nuisance  in  fact.  As  to  this  class  we  said  in  North  Chicago  City 
Ky.  Co.  v.  Town  of  Lake  View,14  '  that,  if  it  be  doubtful  whether 
a  thing  is  in  its  nature  a  nuisance, — that  is,  whether  it  is  in  fact  a 
nuisance, — the  determination  of  the  question  requiring  judgment 
and  discretion  on  the  part  of  the  village  authorities  in  exercising 
their  legislative  functions  under  the  power  delegated  by  the  enact- 
ment we  are  considering,  the  action  of  such  authorities  should  be 
deemed  conclusive  of  the  question.'  "  15 

§  335.  Ordinance  must  not  discriminate — Must  be  uniform  in 
operation. — Though  a  municipality  may  have  the  power  to  declare 
by     ordinance     that     a     certain     thing,     or     the     doing     of     a 

12.  Harrison  v.  Lewiston,  153  111.  14.  105  111.  207,  44  Am.  Rep.  788. 
313,  38  N.  E.  628,  46  Am.  St.  R.  893,  1.5.  Laugel  v.  City  of  Bushnell,  197 
aff'g  46  111.  App.  164.  111.    20,    63    N.    E.    1086,    1087,    per 

13.  Kansas    City    v.    McAleer,    31  Boggs,  J. 
Mo.  App.  433. 

477 


§335 


Municipal  Powers  and  Liabilities. 


certain  act,  or  the  carrying  on  of  a  certain  trade  or 
business,  or  a  specified  use  of  property  is  a  nuisance,  yet  the  ordi- 
nance to  be  valid  must  be  uniform  in  its  operation  and  affect  all 
who  come  within  the  scope  of  its  provisions  in  a  like  manner.  It 
cannot  discriminate  against  some  one  individual  or  individuals 
either  in  express  terms  or  by  the  manner  in  which  it  may  operate.15 
As  has  been  said  in  a  case  in  Maryland ;  "  while  we  hold  that 
this  power  of  control  by  the  courts  is  one  to  be  most  cautiously  ex- 
ercised, we  are  yet  of  the  opinion  that  there  may  be  a  case  in  which 
an  ordinance  passed  under  grants  of  power  like  those  we  have  cited, 
is  so  clearly  unreasonable,  so  arbitrary,  oppressive  or  partial,  as  to 
raise  the  presumption  that  the  legislature  never  intended  to  confer 
the  power  to  pass  it,  and  to  justify  the  courts  in  interfering  and 


16.  May  v.  People,  1  Colo.  App. 
157,  27  Pae.  1010;  Lake  View  v.  Tate, 
33  111.  App.  78;  Bills  v.  City  of 
Goshen,  117  Ind.  221,  20  N.  E.  115, 
3  L.  R.  A.  2G1.  But  see,  however, 
Fischer  v.  St.  Louis,  194  U.  S.  361, 
wherein  it  is  decided  that  an  ordi- 
nance prohibiting  the  erection  of  any 
dairy  or  cow  stable  within  the  city 
limits  without  permission  from  the 
municipal  assembly  and  providing  for 
permission  to  be  given  by  such  as- 
sembly, is  a  police  regulation,  and  is 
not  unconstitutional  as  depriving  a 
person  who  violates  such  ordinance 
of  his  property  without  due  process 
of  law  or  as  denying  him  the  equal 
protection  of  the  laws.  The  court 
here  said:  "We  do  not  regard  the 
fact  that  permission  to  keep  cattle 
may  be  granted  by  the  municipal  as- 
sembly as  impairing  in  any  degree  the 
validity  of  the  ordinance,  or  as  deny- 
ing to  the  disfavored  dairy  keepers 
the  equal  protection  of  the  laws.  Such 
discrimination  might  well  be  made 
where  one  person  desired  to  keep  two 
cows  and  another  fifty;  where  one  de- 
sired to  establish  a  stable  in  the  heart 


of  the  city  and  another  in  the 
suburbs,  or,  where  one  was 
known  to  keep  his  stable  in 
a  filthy  condition  and  another 
had  established  a  reputation  for 
good  order  and  cleanliness.  Such  dis- 
tinctions are  constantly  made  the  ba- 
sis for  licensing  one  person  to  sell  in- 
toxicating liquors  and  denying  it  to 
others.  The  question  in  each  case  is 
whether  the  establishing  of  a  dairy 
and  cow  stable  is  likely,  in  the  hands 
of  the  applicant,  to  be  a  nuisance  or 
not  to  the  neighborhood,  and  to  im- 
peril or  conduce  to  the  health  of  its 
customers.  As  the  dispensing  power 
must  be  vested  in  some  one,  it  is  not 
easy  to  see  why  it  may  not  properly 
be  delegated  to  the  municipal  assem- 
bly which  enacted  the  ordinance.  Of 
course,  cases  may  be  imagined  where 
the  power  to  issue  permits  may  be 
abused  and  the  permission  accorded 
to  social  or  political  favorites  and  de- 
nied to  others,  who  for  reasons  totally 
disconnected  with  the  merits  of  the 
case,  are  distasteful  to  the  licensing 
power.  No  such  complaint,  however, 
is  made  to  the  practical  application 


478 


Municipal  Poweks  axd  Liabilities. 


335 


setting  it  aside  as  a  plain  abuse  of  authority."  1?  So  a  resolution  of 
a  municipal  corporation,  directing  a  soap  factory  in  a  particular 
street  to  be  removed  within  a  certain  time,  unless  put  in  such  a 
condition  as  not  to  be  a  nuisance  and  imposing  a  fine  on  the  parties 
interested  in  the  factory  for  every  infraction  of  the  resolution,  in 
case,  after  the  time  limited  complaint  should  be  made  by  any  three 
inhabitants  under  oath,  that  said  factory  continues  to  be  a  nuisance 
has  been  held  illegal  and  unenforceable,  it  being  declared  that  a 
fine  is  a  pecuniary  punishment  for  an  offense  against  the  laws  of 
the  municipality;  that  an  ordinance  imposing  a  line  is  a  penal  en- 
actment and  must  be  general  in  its  operation;  and  that  an  ordi- 
nance may  impose  fines  on  persons  carrying  on  offensive  trades 
in  a  certain  street  or  suburb,  or  district  where  they  would  be  injuri- 
ous to  the  public  health,  but  that  an  ordinance  designating  one  in- 
dividual, or  one  establishment,  and  subjecting  the  owners  to  pun 
ishment,  is  contrary  to  common  right.18 


of  the  law  in  this  case,  and  we  are  led 
to  infer  that  none  such  exists.  We 
have  no  criticism  to  make  of  the  prin- 
ciple of  granting  a  license  to  one  and 
denying  it  to  another,  and  are  bound 
to  assume  that  the  discrimination  is 
made  in  the  interest  of  the  public  and 
upon  conditions  applying  to  the 
health  and  comfort  of  the  neighbor- 
hood."    Per  Mr.   Justice   Brown. 

1,7.  Baltimore  v.  Radecke,  49  Md. 
217,  229,  33  Am.  R.  239,  per  Mil- 
ler, J. 

18.  "The  power  of  the  council  of 
the  municipality  to  impose  fines  for 
the  violation  of  municipal  ordinances 
is  conceded,  and  the  duty  of  the  mu- 
nicipal government  to  maintain,  by 
all  lawful  means,  the  cleanliness  and 
salubrity  of  the  city,  and  its  posses- 
sion of  ample  powers  to  that  effect, 
are  not  questioned.  But  it  is  urged 
by  counsel  that  the  imposition  of  a 
fine  must  be  by  ordinance  of  a  gen- 
eral character,  operation  and  effect, 
and   that    individuals    cannot    be   af- 


fected by  the  passage  of  resolutions 
against  them  personally,  as,  it  is 
contended,  is  done  in  the  present  in- 
stance. ...  A  fine  can  be  consid- 
ered as  nothing  else  than  a  pecuniary 
punishment  for  an  offense  against  the 
laws  of  the  municipality,  which  the 
by-laws  and  ordinances  in  fact  are. 
An  ordinance  imposing  a  fine  is  in 
every  sense  a  penal  enactment,  and 
by  its  essence  must  be  general  in  its 
operation.  ...  To  designate  one 
individual,  or  one  establishment,  and 
subject  its  owners  to  punishment,  ap- 
pears to  us  to  be  entirely  inadmissible, 
and  contrary  to  common  right.  We 
think  the  exception  is  well  taken  by 
counsel  to  the  legality  of  this  fine. 
The  exercise  of  a  power  like  this  as- 
sumed by  the  council  of  this  munici- 
pality, would  be  attended  with  most 
dangerous  consequences.  Indeed  it 
has  more  resemblance  to  an  imperial 
rescript,  than  a  rule  for  the  conduct 
of  citizens  under  a  government  of 
laws,   enacted   by  a    body    possessing 


479 


§  336  Municipal  Powers  axd  Liabilities. 

§  336.  Same  subject — Where  ordinance  prohibits  unless  per- 
mission obtained. — An  ordinance  will  not  be  upheld  as  valid 
where  it  prohibits  the  doing  of  a  certain  thing  and  provides  that  it 
shall  be  regarded  as  a  nuisance  if  done  without  permission  from 
the  local  authorities  but  reserves  to  such  authorities  the  right  to 
arbitrarily  grant  or  refuse  a  permit  without  regard  to  whether 
a  nuisance  will  in  fact  be  created  thereby.  Such  an  ordinance 
would  give  the  municipal  authorities  the  power  to  permit  one  in- 
dividual who  was  possibly  in  favor  with  them  to  do  an  act  which, 
without  reason,  they  might  refuse  to  permit  another  individual  to 
do  under  the  same  or  similar  conditions.  An  ordinance  requiring 
a  permit  should,  to  be  valid,  specify  the  rules  and  conditions  to  be 
observed  in  such  cases  and  must  admit  of  the  exercise  of  the 
privilege  by  all  citizens  alike  who  will  comply  with  such  rules 
and  regulations.19  So,  a  by-law  providing  that  "  No  person  shall 
keep  a  slaughterhouse  within  the  city  without  the  special  resolution 
of  the  council  "  has  been  held  not  to  be  within  a  power  granted  to 
regulate  or  prevent  the  erection  or  continuance  of  slaughterhouses 
which  may  prove  to  be  a  nuisance,  it  being  declared  that  such  a  by- 
law permitted  favoritism  by  the  council  which  might  be  exercised 
in  restraint  of  trade  or  to  grant  a  monopoly,  and  that  all  persons 
in  such  trade  were  not  placed  or  were  liable  not  to  be  placed  on  the 
same  footing.20  And  it  has  been  declared  that  a  municipal  ordi- 
nance to  regulate  the  carrying  on  of  public  laundries  within  the 
limits  of  the  municipality  violates  the  provisions  of  the  United 
States  Constitution  where  it  confers  upon  the  municipal  authorities 
arbitrary  power,  without  regard  to  discretion,  in  the  legal  sense  of 

mere  powers  of  administration.  First  with  such  rules  and  conditions;  and 
Municipality  of  New  Orleans  v.  Bli-  must  not  admit  of  the  exercise,  or  of 
neau,  3  La.  Ann.  688,  per  Eustis,  the  opportunity  for  the  exercise  of 
C.  J.  any  arbitrary  discrimination  by  the 
19.  "  It  seems  ...  to  be  well  municipal  authorities  between  citizens 
established  that  municipal  ordinances  who  will  so  comply."  City  of  Rich- 
placing  restrictions  upon  lawful  con-  mond  v.  Dudley,  129  Ind.  112,  116.  28 
duct,  or  the  lawful  use  of  property,  N.  E.  312,  28  Am.  St.  R.  180,  13  L. 
must,  in  order  to  be  valid,  specify  the  R.  A.  587,  per  Miller,  J.  See  Boyd  v. 
rules  and  conditions  to  be  observed  in  Board  of  Councilmen  of  Frankfort 
such  conduct  or  business,  and  must  (Ky.  C.  A.,  1903),  77  S.  W.  669. 
admit  of  the  exercise  of  the  privilege  20.  Nash  v.  McCracken,  33  Up. 
by  all  citizens  alike,  who  will  comply  Can.  Q.  B.  181. 

4S0 


Municipal  Powers  and  Liabilities.  §  337 

the  term  to  give  or  withhold  consent  as  to  persons  or  places, 
without  regard  to  the  competency  of  the  persons  applying  or  the 
propriety  of  the  place  selected  for  the  carrying  on  of  a  trade  or 
business  such  as  a  laundry.21  And  it  has  been  decided  that  an 
ordinance  which  prohibits  the  erection  of  any  slaughterhouse 
within  three  hundred  feet  of  any  dwelling  without  the  consent  of 
the  owner  is  invalid  as  attempting  to  substitute  for  the  sanction  of 
a  law  the  written  consent  of  one  or  more  individuals.22  So,  an  or- 
dinance prohibiting  the  keeping  of  dairies  within  certain  pre- 
scribed limits,  but  giving  the  city  council  power  to  grant  or  refuso 
a  permit  to  maintain  them  within  such  limits  has  been  held  to  be 
void  as  not  being  general  in  its  operation  among  the  class  it  is 
designed  to  effect.23  It  was  declared  by  the  court  in  this  case  that 
this  ordinance  established  "  an  inequality,  granting  to  some  per- 
sons following  the  same  occupation,  privileges  that  are  not  ex- 
tended to  others.  The  ordinances  do  not  regulate  dairies  in  the 
interest  of  public  health.  One  dairy  may  be  a  nuisance  because  the 
city  council  has  refused  to  give  the  required  permission  for  its 
establishment ;  another  may  be  perfectly  harmless  and  in  no  way 
detrimental  to  public  health  because  it  exists  by  permission  of 
the  council.  They  may  exist  alongside  of  each  other,  both  unob- 
jectionable in  their  police  regulations,  and  one  a  nuisance  and  the 
other  a  lawful  establishment.  Both  the  original  and  amended  ordi- 
nances violate  equal  rights  among  the  class  they  are  designed  to 
affect,  and  are,  therefore,  necessarily  void,  so  far  as  they  do  so."  2* 

§  337.  Same  subject — Ordinance  requiring  permit  for  pro- 
cessions, parades,  etc. — One  of  the  leading  cases  in  which  this 
question  is  considered  involved  the  construction  of  an  ordinance 
which  prohibited  any  person  or  persons,  association  or  organiza- 
tions from  marching,  parading,  riding  or  driving  in  or  upon  the 
streets  of  the  city,  with  musical  instruments,  banners,  flags, 
torches  or  flambeaux  or  while  singing  or  shouting,  without  first 

21.  Yick  Mo  v.  Hopkins,  118  U.  S.  22.  St.  Louis  v.  Howard,  119  Mo. 

373,  30  L.  Ed.  227.     See  Ex  p.  Sing      41,  24  S.  W.  770,  41  Am.  St.  R.  630. 
Lee,  96  Cal.  354,  31  Pac.  245,  24  L.  23.  State  v.  Manner,  43  La.  Ann. 

R.  A.  195,  31  Am.  St.  R.  218.  496,  9  So.  480. 

24.  Per  McEnery,  J. 

481 


§  337  Municipal  Poweks  and  Liabilities. 

having  obtained  the  consent  of  the  mayor  or  common  council. 
Funeral  and  military  processions  were  excepted,  but  were  re- 
quired, as  also  those  permitted  by  the  mayor  or  council,  to  conform 
to  such  directions  as  the  mayor  or  chief  of  police  might  give  in 
relation  to  the  streets  to  be  used,  and  the  portion  thereof  to  be 
occupied  and  the  manner  of  such  use.  A  member  of  the  Salvation 
Army  was  arrested  for  an  alleged  violation  of  this  ordinance 
and  was  ordered  discharged  in  habeas  corpus  proceedings  brought 
to  secure  his  release,  the  court  declaring  that  the  ordinance  was  an 
arbitrary  and  unwarranted  exercise  by  the  municipality  of  the 
powers  conferred  upon  it  and  was  unreasonable  because  it  sup- 
pressed what  was  lawful  and  left  to  an  unregulated  official  discre- 
tion the  power  of  permitting  or  restraining  processions,  and  their 
courses.25  The  following  words  of  the  court  are  of  value  in  this 
connection :  "  There  is  no  express  reference  in  the  charter  to  the 
use  of  streets  for  processions,  and  no  power  is  given  to  license 
or  regulate  them  in  terms.  It  contains1  no  reference  to  the  streets 
beyond  such  as  contemplates  that  they  shall  be  under  municipal 
oversight  in  the  usual  ways,  some  of  which  are  mentioned.  Coun- 
sel for  the  city  referred  to  various  powers  which  they  claim  cover 
the  ordinance  in  question.  These  were  the  power  '  to  prevent  vice 
and  immorality,  to  preserve  public  peace  and  good  order,  to  pre- 
vent and  quell  riots,  disturbances,  and  disorderly  assemblages.' 
'  To  prevent  the  cumbering  of  streets,  sidewalks,  etc.,  in  any  man- 
ner what-ever.'  '  To  control,  prescribe  and  regulate  the  manner 
in  which  the  highways,  streets,  avenues,  lanes,  alleys,  public 
grounds  and  spaces  within  said  city  shall  be  used,'  '  To  prohibit 
practices,  amusements  and  doings  in  said  streets,  having  a  tend- 
ency to  frighten  teams  and  horses,  or  dangerous  to  life  and  prop- 
erty.' '  To  prohibit,  and  prevent  any  riot,  rout,  disorderly  noise, 
disturbance,  or  assemblage  in  the  streets  or  elsewhere  in  said  city.' 
'  To  provide  for  maintaining  the  peace  and  good  government  of 
said  city.'  If  the  legislature  of  the  State  had  the  power  to  subject 
the  people  of  cities  to  the  uncontrolled  and  arbitrary  will  of  a 
common  council,  and  having  such  power,  had  clearly  signified  their 

25.  Matter  of  Andrew  Frazee,  63 
Mich.  396,  30  N.  W.  72,  6  Am.  St.  R. 
310. 

482 


Municipal  Powers  and  Liabilities.  §  337 

purpose  to  do  so,  then  it  might,  perhaps,  be  claimed  with  some 
show  of  reason  that  the  city  of  Grand  Rapids  could  do  what  it 
pleased  under  these  grants  of  power.  But  the  rules  of  legal  con- 
struction allow  no  such  absurdity.  It  is  not  in  the  power  of  the 
legislature  to  deprive  any  of  the  people  of  the  enjoyment  of  equal 
privileges  under  the  law,  or  to  give  cities  any  tyrannical  powers. 
All  charters  and  all  laws  and  regulations,  to  be  valid  for  any 
purpose,  must  be  capable  of  construction,  and  must  be  construed 
in  conformity  to  constitutional  principles  and  in  harmony  with 
the  general  laws  of  the  land ;  and  any  by-law  which  violates  any  of 
the  recognized  principles  of  legal  and  equal  rights  is  necessarily 
void  so  far  as  it  does  so,  and  void  entirely  if  it  cannot  be  reason- 
ably applied  according  to  its  terms. 

We  must  therefore  construe  this  charter  and  the  powers  it  as- 
sumes to  grant,  so  far  as  it  is  not  plainly  unconstitutional,  as  only 
conferring  such  power  over  the  subjects  referred  to  as  will  enable 
the  city  to  keep  order  and  suppress  mischief,  in  accordance  with 
the  limitations  and  conditions  required  by  the  rights  of  the  peo- 
ple themselves,  as  secured  by  the  principles  of  law,  which  cannot 
be  less  careful  of  private  right  under  a  constitution  than  under 
the  common  law. 

It  is  quite  possible  that  some  things  have  a  greater  tendency  to 
produce  danger  and  disorder  in  cities  than  in  smaller  towns  or  in 
rural  places.  This  may  justify  reasonable  precautionary  meas- 
ures, but  nothing  further;  and  no  inference  can  extend  beyond 
the  fair  scope  of  powers  granted  for  such  a  purpose,  and  no  grant 
of  absolute  discretion  to  suppress  lawful  action  altogether  can 
be  granted  at  all.  That  which  is  an  actual  nuisance  can  be  sup- 
pressed just  so  far  as  it  is  noxious,  and  its  noxious  character  is  the 
test  of  its  wrongfulness.  "There  may  be  substances,  like  some  ex- 
plosives, which  are  dangerous  in  cities  under  all  circumstances,  and 
made  dangerous  by  city  conditions.  But  most  dangerous  things 
are  not  so  different  in  cities  as  to  require  more  than  increased  or 
qualified  safeguards;  and  to  suppress  things  not  absolutely  dan- 
gerous, as  an  easy  way  of  getting  rid  of  the  trouble  of  regulating 
them,  is  not  a  process  tolerated  under  free  institutions.  Regula- 
tion and  not  prohibition,  unless  under  clear  authority  of  the 
charter,  and  in  cases  where  it  is  not  oppressive,  is  the  extent  of 
city  power. 

483 


§  338  Municipal  Poweks  axd  Liabilities. 

Whatever  regulation  is  made  must  operate  uniformly  under  the 
same  conditions.  It  is  competent  to  hold  all  persons  liable  for 
any  actual  wrong  done  which  creates  dangerous*  or  noxious  conse- 
quence. That  is  already  provided  for  under  the  law  of  nuisances. 
These  processions  might,  no  doubt,  become  nuisances,  as  any  others 
might,  it  cannot  be  assumed  that  they  will,  and  it  appears  in  the 
record  before  us  that  they  have  been  judicially  adjudged  other- 
wise when  prosecuted.  Any  doctrine  that  would  hold  them  legally 
objectionable  in  themselves  would  cover  every  military  or  political 
or  society  procession  that  ever  assumed  respectable  proportions. 
All  by-laws  made  to  regulate  them  must  fix  the  conditions  ex- 
pressly and  intelligibly,  and  not  leave  them  to  the  caprice  of 
anyone.     . 

This  by-law  is  unreasonable  because  it  suppresses  what  is  in  gen- 
eral perfectly  lawful,  and  because  it  leaves  the  power  of  permit- 
ting or  restraining  processions  and  their  courses  to  an  unregulated 
official  discretion,  when  the  whole  matter,  if  regulated  at  all, 
must  be  by  permanent  legal  provisions  operating  generally  and  im- 
partially." 26  And  in  a  case  in  Kansas  which  violated  the  con- 
struction of  a  similar  ordinance  it  was  declared  that  the  ordinance 
was  unreasonable,  that  it  did  not  fix  the  conditions  uniformly  and 
impartially,  that  it  contravened  common  right  and  was  illegal  and 
void.27 

§  338.  Municipal  power  to  declare  a  cemetery  a  nuisance. — 

A  municipality  possesses  no  power  by  virtue  merely  of  an  authority 
to  abate  and  remove  nuisances  to  declare  a  cemetery,  in  a  proper 
locality,  a  nuisance,  it  not  being  one  necssarily.28      So  the  power 

26.  Per  Campbell,  J.  ing  that  the  power  '  to  abate  and  re- 

27.  Anderson  v.  City  of  Welling-  move '  should  be  construed  as  includ- 
ton,  40  Kan.  173,  19  Pae.  719,  2  L.  ing  the  power  to  prevent,  yet  this  pre- 
R.  A.  110,  10  Am.  St.  R.  175.  ventive  power  could  only  be  exercised 

28.  Town  of  Lake  View  v.  Letz,  44  in  reference  to  those  things  that  are 
111.  81,  in  which  the  court  said:  "The  nuisances  in  themselves,  and  neces- 
act  of  the  legislature  authorizing  the  sarily  so.  There  are  some  thing9 
board  of  trustees  '  to  abate  and  re-  which  in  their  nature  are  nuisances, 
move  nuisances '  gave  them  no  power  and  which  the  law  recognizes  as  such, 
to  pass  an  ordinance  forbidding  the  There  are  others  which  may  or  may 
establishment  of  a  cemetery.     Conced-  not  be  so,  their  character  in  thia  re- 

484 


Municipal  Powers  and  Liabilities. 


§  338 


conferred  upon  a  city  to  protect  the  health  of  its  inhabitants  and  to 
remove  nuisances  does  not  authorize  the  passing  of  an  ordinance 
providing  that  the  burial  of  a  dead  body  within  the  city  limits  will 
constitute  a  nuisance  where  there  are  certain  portions  of  the  city 
in  which  interments  could  be  made,  at  such  a  distance  from  any 
inhabitant  or  public  thoroughfare  as  to  in  no  way  offend  the  senses 
or  endanger  the  health  of  the  community.29 


spect  depending  on  circumstances. 
Now,  the  town  of  Lake  View  is  a 
rural  township,  containing  about 
eleven  sections  or  square  miles  of  ter- 
ritory. It  is,  therefore,  impossible  to 
hold,  that  a  cemetery,  anywhere 
within  the  limits  of  the  town,  must  be 
necessarily  a  nuisance,  and  can  be 
prohibited  in  advance  as  such.  A 
cemetery  may  be  so  placed  as  to  be 
injurious  to  the  public  health,  and 
therefore  a  nuisance.  It  may,  on  the 
other  hand,  be  so  located  and  ar- 
ranged, so  planted  with  trees  and 
flowering  shrubs,  intersected  with 
drives  and  walks,  and  decorated  with 
monumental  marbles,  as  to  be  not  less 
beautiful  than  a  public  landscape  gar- 
den, and  as  free  from  all  reasonable 
objection.  The  power  to  prohibit  the 
establishment  of  cemeteries  except  by 
the  authority  of  the  trustees  cannot 
be  considered  as  falling  within  the 
power  to  abate  and  remove  nui- 
sances."    Per  Mr.  Justice  Lawrence. 

29.  Wygant  v.  McLauchlin,  39 
Ore.  429,  64  Pac.  807.  The  court 
here  said:  "Defendant's  counsel  in- 
sist, however,  that  the  authority 
requisite  for  excluding  burials  from 
within  the  city  limits  may  be  refer- 
able to  the  general  police  power  inci- 
dent to  all  municipal  corporations, 
and  beyond  this,  it  is  urger  that  the 
words  of  the  charter  '  to  provide  for 
the     health,     cleanliness,     ornament. 


peace  and  good  order  of  the  city,'  are 
commensurate  for  the  purpose.  The 
power  thus  conferred  is  no  doubt 
ample  to  authorize  the  city  to  adopt 
reasonable  measures  prescribing  rules 
and  regulations,  as  it  respects  the 
place  and  manner  of  burials  within 
the  city  limits;  but  the  city  cannot 
arbitrarily  prohibit  them,  unless  such 
prohibition  be  a  reasonable  exercise  of 
the  power.  .  .  .  Now  it  is  an  ad- 
mitted fact  that  there  are  consider- 
able tracts  of  land  comprised  within 
the  limits  of  the  city  which  are 
sparsely  inhabited.  As  was  said  by 
the  court  below,  '  there  are  within  the 
corporate  limits  of  the  city  of  Port- 
land several  large  tracts  of  land, 
which  are  used  solely  for  farming  pur- 
poses, some  of  them  containing  several 
hundred  acres,  and  on  some  of  them 
interments  could  be  made  which 
would  be  distant  a  half  mile  or  more 
from  any  human  inhabitant  or  public 
thoroughfare.'  Under  these  condi- 
tions it  is  assuredly  not  a  reasonable 
regulation  as  a  police  provision  or  for 
the  conservation  of  the  health  or 
good  order  of  the  community,  to  ex- 
clude burials  from  the  whole  terri 
tory,  save  the  districts  enumerated 
by  the  ordinance.  If,  however,  as  be- 
fore indicated,  the  legislature  had 
granted  special  and  express  power  to 
exclude  burials  from  within  the  city 
limits,  the  adoption  of  such  an  ordi- 


485 


§339 


Municipal  Powers  and  Liabilities. 


§  339.  Validity  of  particular  ordinances. — Power  to  declare 
what  are  nuisances  and  to  provide  for  their  removal  gives  no  au- 
thority to  a  municipality  to  regulate  the  running  of  trains  through 
the  city  and  to  provide  that  the  running  of  them  at  a  certain  speed 
shall  constitute  a  nuisance  as  the  legislation  of  the  municipality 
must  be  subordinate  to  that  of  the  State,  to  which  it  owes  its  ex- 
istence. It  is  not  authorized  to  unwarrantably  interfere  with  fran- 
chises granted  by  the  State  to  be  exercised  for  the  public  good.30 
And  such  power  conferred  in  general  terms  does  not  authorize  the 
passing  of  an  ordinance  declaring  that  "  all  public  picnics  and 
open-air  dances,"  are  nuisances,  without  regard  to  their  character,31 


nance  would  be  a  legitimate  exercise 
thereof,  and  no  one  could  question  its 
validity.  Yet,  when  the  nature  of  the 
power  delegated  enjoins  upon  the  city 
the  duty  of  adopting  such  measures 
only  as  are  reasonable  that  becomes 
the  measure  of  the  limit  of  the  power, 
and  any  act  in  excess  thereof  is  with- 
out legal  efficacy."  Per  Wolver- 
ton,  J. 

30.  New  Jersey  R.  &  T.  Co.  v.  Jer- 
sey City,  29  N.  J.  L.  170,  holding 
under  such  a  provision  no  power  ex- 
ists in  a  common  council  to  declare 
any  thing  a  nuisance  which  can  not 
be  detrimental  to  public  health  or 
convenience,  or  dangerous  to  the  citi- 
zens, and  even  then  not  when  the 
thing  complained  of  has  been  au- 
thorized by  the  supreme  legislative 
power  of.  Compare  Lake  View  v. 
Tate,  33  111.  App.  78,  holding  that  a 
municipality  may  regulate  the  speed 
of  trains,  but  declaring  that  such  an 
ordinance  must  not  tend  to  discrimi- 
nate. 

31.  "That  public  picnics  and  pub- 
lic dances  are  not  in  their  nature  nui- 
sances, we  think  is  quite  clear.  They 
are  not  in  the  list  of  common  law  nui- 
sances enumerated  in  the  text  books 


.  .  .  Nor  is  there  necessarily  any- 
thing harmful  in  the  nature  of  either, 
more  than  in  that  of  any  other  public 
amusement.  When  conducted  with 
proper  decorum  and  circumspection 
and  remote  from  public  thorough- 
fares, it  is  impossible  to  conceive  how 
any  public  injury  or  annoyance  can 
result.  That  the  manner  of  conduct- 
ing them  may  be  productive  of  an- 
noyance and  injury  to  the  public  is 
not  to  be  questioned,  but  since  the 
nuisance  must  consist  in  this,  and 
cannot  consist  in  the  mere  fact  that 
there  is  a  picnic  or  dance,  the  ordi- 
nance must  be  directed  only  to  it. 
While  the  right  of  the  people  to  be 
free  from  disturbance  and  reasonable 
apprehension  of  danger  to  person  and 
property  is  to  be  respected  and  jeal- 
ously guarded,  the  equal  right  of  all 
to  assemble  together  for  health,  recre- 
ation or  amusement  in  the  open  air  is 
no  less  to  be  respected,  and  jealously 
guarded.  Because  a  privilege  may  be 
abused  is  no  reason  why  it  shall  be 
denied."  Village  of  Des  Plaines  v. 
Poyer,  123  111.  348,  350,  14  N.  E.  677, 
5  Am.  St.  R.  524,  per  Mr.  Justice 
Scholfield,  aff'g  22  111.  App.  574. 


486 


Municipal  Powers  axd  Liabilities. 


339 


or  that  every  barbed  wire  fence  within  the  limits  of  the  town  is  a 
nuisance.32  And  it  has  been  deecided  that  lime  kilns  within  the 
city  limits  cannot  by  ordinance  be  made  nuisances  without  regard 
to  their  location  under  authority  conferred  on  a  municipality  to 
preserve  the  health  and  to  prevent  and  remove  nuisances.33  It  has, 
however,  been  decided  that  a  city  may  in  the  exercise  of  its  legiti- 
mate police  powers  prevent  the  maintenance  of  wires  upon  or  over 
the  roofs  of  houses,  where  their  maintenance  in  such  a  place  is  dan- 
gerous both  by  reason  of  their  liability  to  cause  fires  and  also  to 
obstruct  the  extinguishment  of  a  fire  originating  from  any  cause.34 
And  it  has  been  held  in  some  cases  to  be  a.  valid  exercise  of  the 
power  of  a  municipality  over  nuisances  to  prohibit  the  using  or 
keeping  of  intoxicating  liquors  in  places  of  a  certain  class,  such  as 
refreshment  saloons  or  restaurants.35 


32.  Mason  City  v.  Barngrover,  26 
111.  App.  296.  As  to  fences  en- 
croaching on  highway,  see  §§  239. 
240,  herein. 

33.  State  v.  Mott,  61  Md.  297,  48 
Am.  Rep.  105.  Compare  Ward  v. 
Washington,  Fed.  Cas.  No.  17,  163,  4 
Cranch  C.  C.  232,  holding  that  under 
a  similar  provision  a  city  might  by 
ordinance  prohibit  the  erection  and 
use  of  lime  kiln  without  a  license. 
As  to  brick  and  lime  kilns,  see  §§ 
111,    145,    herein. 

34.  Electric  Improvement  Co.  v. 
San  Francisco  City  and  County,  45 
Fed.  593.  The  court  said  in  this  case: 
"  The  only  wonder  is  that  owners  of 
buildings  in  view  of  the  recognized 
danger  will  permit  their  use  for  such 
purposes.  True,  the  supervisors  can- 
not make  an  article  dangerous  by 
simply  declaring  it  to  be  so,  when,  in 
fact,  it  is  not.  But  the  practice  as  it 
now  prevails,  against  which  this  ordi- 
nance is  directed,  is  shown  to  be  dan- 
gerous, and  we,  ourselves,  all  know 
it  to  be  so.  There  can  be  no  success- 
ful disputing  of  the  fact.  The  order  is 


general  and  applicable  to  all.  If  it 
is  not  enforced  as  to  all  it  ought  to 
be,  and  the  chief  of  police  declares  his 
purpose  to  enforce  it,  in  all  cases, 
that  come  to  his  notice.  I  see  no 
good  reason  to  believe  that  it  was 
passed  for  the  purpose  of  discrimina- 
tion in  favor  of  another  company,  as 
claimed,  or  that  it  is  intended  to  be 
so  enforced.  I  do  not  think  it  vio- 
lates any  provision  of  the  national 
constitution.  I  regret  to  be  obliged, 
by  this  decision,  to  affect,  so  seri- 
ously, the  interests  of  the  enterpris- 
ing parties  who  are  endeavoring  to 
supply  our  citizens  with  electricity 
for  the  various  purposes  to  which  it 
is  now  applied.  But  I  cannot  decline 
to  administer  the  law  as  I  find  it  for 
the  safety  and  security  of  the  lives 
and  property  of  the  citizens  of  San 
Francisco."     Per  Sawyer,  J. 

35.  State  v.  Clark,  28  N.  H.  176, 
61  Am.  Dec.  611.  See  Laurel  v.  City 
of  Bushnell,  197  111.  20,  63  N.  E. 
1086,  affirming  96  111.  App.  618.  But 
see  Darst  v.  People,  51  111.  286,  2 
Am.  Rep.  301. 


4S7 


340 


Municipal  Powers  and  Liabilities. 


S 


§  340.  Same  subject  continued. — It  may  be  provided  by  ordi- 
nance that  slaughter  houses  within  the  city  limits  are  nuisances, 
where  power  is  conferred  upon  the  municipality  to  declare  what  are 
nuisances,  and  also  to  designate  the  location  of  slaughter  houses.36 
And  an  ordinance  forbidding  one  to  allow  weeds  of  a  certain  height 
to  grow  upon  his  property  and  declaring  that  "  the  word  '  weed  ' 
as  used  herein  shall  be  held  to  include  all  ranks  or  vegetable 
growth  which  exhale  unpleasant  or  noxious  odors,  and  also  high 
and  vegetable  growth  that  may  conceal  filthy  deposits,"  does  not 
violate  provisions  of  the  constitution,  that  all  persons  have  a  nat- 
ural right  to  life,  liberty,  and  the  gains  of  their  own  industry  or 
that  private  '  property '  shall  not  be  taken  for  private  use  without 
just  compensation.37  And  under  a  code  provision  that  cities  shall 
have  power  to  prevent  riots,  noise,  disturbance  or  disorderly  assem- 
blages and  to  suppress  and  restrain  disorderly  houses  it  has  been 
decided  that  a  city  may  by  ordinance  make  it  a  common  nuisance  to 
keep     or     control     a     house     or     building,     within     the     city 


The  liquor  traffic  is  generally 
subject  to  statutory  control,  but 

wider  power  given  to  a  municipality 
to  grant  or  refuse  a  license  and  also 
to  restrain,  prohibit  and  suppress 
tippling  houses  and  dram  shops,  it 
may  declare  that  the  sale  of  intoxi- 
cants within  the  corporate  limits  is 
a  nuisance.  Block  v.  Town  of  Jack- 
sonville, 36  111.  301,  citing  City  of 
Pekin  v.  Smelzel,  21  111.  464;  Trus- 
tees of  Jacksonville  v.  Holland.  19  111. 
271;  Byers  v.  Trustees  of  Olney,  16 
111.  35;  Goddard  v.  Jacksonville,  15 
111.  588. 

Power  given  by  charter  to  a 
municipality  to  regulate  the  opening 
on  Sunday  of  places  where  liquors 
are  sold  does  not  control  State  laws 
which  may  be  enforced  within  such 
limits.  Ginnochio  v.  State,  30  Tex. 
App.  584,  18  S.  W.  82. 

36.  Rund  v.  Fowler,  142  Ind.  214, 
41  N.  E.  456,  holding  that  a  slaughter 


house  erected  or  conducted  in  viola- 
tion of  an  ordinance  prohibiting  its 
maintenance  within  the  corporate  lim- 
its of  the  town  became  a  nuisance  al- 
though it  would  not  be  such  in  the  ab- 
sence of  such  ordinance.  Darcantel 
v.  People's  Slaughter  House  &  R.  Co., 
44  La.  Ann.  632,  11  So.  239,  37  Am. 
&  Eng.  Corp.  Cas.  518;  Villavosa  v. 
Barthet,  39  La.  Ann.  24,  1  So.  599; 
Portland  v.  Meyer,  32  Ore.  368,  52 
Pac.  21,  holding  that  a  charter  power 
conferred  upon  a  municipality  to  ex- 
clude from  the  city  slaughter  houses 
authorizes  it  to  exercise  such  power 
in  respect  to  those  established  at  the 
time  of  the  passage  of  an  ordinance 
prohibiting  their  continuance  and 
does  not  violate  any  constitutional 
right  of  a  proprietor  of  such  an  es- 
tablishment. As  to  slaughter  houses 
generally,  see  §§  126-131,  herein. 

37.  City  of  St.  Louis  v.  Gait,  178 
Mo.  8,  77  S.  W.  876,  63  L.  R.  A.  778. 


488 


Municipal,  Powers  and  Liabilities.  §  341 

limits,  ill  which  loud  or  unusual  noises  are  permitted, 
or  persons  are  allowed  to  assemble  and  use  profane  and 
vulgar  language,  to  the  disturbance  of  others.38  It  has, 
however,  been  determined  that  power  conferred  upon  a 
city  to  pass  such  ordinances  as  may  be  deemed  necessary  for  the 
better  government  of  the  same  or  a  general  law  authorizing  towns 
to  pass  such  laws  as  may  be  necessary  to  abate  a  nuisance  does  not 
authorize  it  to  pass  an  ordinance  making  it  an  offense  for  either 
the  owner  or  occupant  of  a  house  or  part  thereof  to  allow  the 
cohabitation  therein  of  males  and  females  who  have  not  been  law- 
fully married.  Such  an  ordinance  is  declared  to  be  not  only  un- 
authorized but  unreasonable  even  though  the  power  were  conferred 
upon  the  municipality  in  express  terms  to  suppress  bawdy  houses.39 

§  341.  Powers  of  municipality  as  to  erection  of  structures — 
Authorization  by  legislature. — The  legislature  may  authorize  a 
municipality  to  prohibit  the  erection  of  certain  kinds  of  structures 
within  its  limits.40  And  where  the  legislature  or  a  municipality 
duly  authorized  enacts  a  general  statute  or  ordinance  prohibiting 
certain  erections  within  a  prescribed  territory,  and  declares  an 
erection  in  violation  of  such  statute  or  ordinance  a  public  nui- 
sance, it  has  been  declared  that  the  reasonableness  of  the  prohibi- 

38.  City  of  Centerville  v.  Miller,  sees  or  frequent  them.  Such  a  by- 
57  Iowa,  56,  10  N.  W.  293.  law  is  not  only  unauthorized  but  un- 

39.  "  The  power  to  prevent  nui-  reasonable.  If  the  power  to  suppress 
sances  does  not  directly  or  by  impli-  bawdy  houses  had  been  given  in  ex- 
cation  carry  with  it  the  authority  to  press  terms,  as  has  been  done  in  some 
hold  the  owner  of  a  building,  who  instances,  the  city  could  not  even  then 
may  never  himself  visit  it.  responsible  have  usurped  the  authority  to  enact 
for  the  nuisance  of  keeping  a  house  that  persons  not  guilty  of  nuisance 
of  prostitution,  bawdy  house,  or  house  under  the  established  principles  of 
of  ill  fame,  committed  by  his  tenant  law  should  be  deemed  guilty  of  keep- 
without  his  knowledge  or  consent,  and  ing  bawdy  houses,  and  to  prescribe 
subject  him  to  a  fine,  to  say  nothing  new  rules  of  evidence  to  be  adopted 
of  the  disjunctive  liability  to  be  on  the  trial."  State  v.  Webber,  107 
deemed  the  keeper  of  a  house  of  ill-  N.  C.  962,  12  S.  E.  598,  22  Am.  St. 
fame,  and  to  have  the  inference  drawn  R.  920,  per  Avery,  J. 

against  him   on   account   of   the   bad  40.  City  of  Salem  v.  Maynes,   123 

character  rather  than  the  conduct  of      Mass.   372;   Respublica  v.   Duquet,  2 
those  who  occupy  his  houses  as  les-       Yeates   (Pa.),  493. 

489 


§  342  Municipal  Powees  axd  Liabilities. 

tion  is  not  thereafter  open  to  question.41  So  a  municipality  where 
it  has  been  authorized  by  the  legislature  "  to  prevent  and  remove 
all  nuisances  "  and  "  to  regulate  and  prevent  the  carrying  on  of 
manufactories  dangerous  in  causing  or  promoting  fires  "  may  de- 
clare to  be  nuisances  "  all  steam  grist  mills,  saw  mills  or  other 
machinery  contained  ...  in  buildings  .  .  .  wholly  or  in 
part  of  wood,  which  establishment,  by  reason  of  the  defect  or 
dilapidation  of  the  buildings,  the  defective  construction  of  the  ma- 
chinery ...  or  any  other  cause,  are  or  shall  hereafter  become 
dangerous  to  persons  or  property."42  But  where  a  city  was  au- 
thorized by  its  charter  to  "  establish  such  regulations  for  the  pre- 
vention and  extinguishment  of  fires,  as  the  city  council  deem  ex- 
pedient"  and  an  amendment  to  the  charter  contained  a  specific 
enumeration  of  the  acts  which  the  city  might  do  "  for  the  purpose 
of  guarding  against  calamities  by  fire  "  it  was  decided  that  such 
enumeration  operated  as  a  limitation  upon  the  general  power  con- 
ferred in  the  original  charter  upon  the  principle  that  where  a 
thing  is  directed  to  be  done  through  certain  means,  or  in  a  par- 
ticular manner,  there  is  an  implied  inhibition  upon  doing  it 
through  other  means  or  in  a  different  manner.  In  this  case  it 
was  decided  that  an  ordinance  prohibiting  the  erection  of  build- 
ings of  combustible  material  within  certain  limits  was  void  as 
not  being  specifically  authorized  by  the  amendment  to  the 
charter.43 

§342.  Powers  as  to  structures  and  erection  of  or  establishment 
of  fire  limits — Want  of  legislative  authorization. — The  authori- 
ties are  not  in  harmony  as  to  the  right  of  a  municipality  to  pro- 
hibit the  erection  of  certain  structures  within  its  limits  or  to 
declare  such  structures  nuisances  where  there  is  no  express  au- 
thorization by  the  legislature  to  so  act.  The  general  rule,  how- 
ever, as  sustained  by  the  weight  of  authority,  seems  to  be  that 
where  no  power  is  conferred  upon  the  municipality  either  by  its 
charter  or  any  general  or  special  laws  or  does  not  arise  by  necessary 
implication  it  can  not  restrict  the  erection  of  a  wooden  or  frame 

41.  Griffin  v.   City  of  Gloversville,  42.  Green  v.  Lake,  60  Mis9.  451. 

67  App.  Div.   (X.  Y.)  403,  408,  73  N.  43.  City  of  Keokuk  v.  Scroggs,  39 

Y.  Suppl.  684,  per  Chase.  J.  Iowa,  447. 

490 


Municipal  Powers  and  Liabilities. 


§342 


structure  within  the  city  or  declare  such  a  structure  a  nuisance 
and  subject  it  to  removal.44  And  it  has  been  decided  that  where 
no  power  is  conferred  on  a  municipality  by  its  charter  to  re- 
strict the  erection  of  a  wooden  or  frame  building  within  its  cor- 
porate limits  it  has  no  authority  to  prohibit  the  erection  of  such 
a  structure.40  So  in  a  case  in  Texas  it  has  been  decided  that  power 
to  pass  an  ordinance  establishing  fire  limits  and  declaring  wooden 
buildings  erected  therein  to  be  nuisances  is  not  conferred  by  a 
provision  in  the  charter  of  a  municipality  authorizing  it  to  "  or- 
dain and  establish  such  acts,  laws,  regulations,  and  ordinances 
not  inconsistent  with  the  constitution  or  laws  of  this  State,  as 
shall  be  needful  for  the  government,  interests,  welfare,  and  good 


44.  Yates  v.  Milwaukee,  10  Wall. 
(U.  S.)  497,  19  L.  Ed.  984,  holding 
that  in  the  absence  of  any  general 
laws  upon  the  subject  a  municipality 
cannot  declare  a  structure  a  nuisance 
and  subject  it  to  removal  either  by 
an  individual  or  a  city.  Chicago,  R. 
I.  &  P.  R.  Co.  v.  Joliet,  79  111.  25, 
holding  that  in  the  absence  of  a  gen- 
eral law  declaring  a  certain  class  of 
structures  a  nuisance,  such  a  struct- 
ure does  not  become  one  merely  by  a 
declaration  of  the  municipal  authori- 
ties to  that  effect.  Village  of  St. 
Johns  v.  McFarlan,  33  Mich.  72,  20 
Am.  Rep.  671,  holding  that  the  erec- 
tion of  a  wooden  building  within  the 
limits  of  a  city  or  village  is  not  in 
and  of  itself  a  nuisance  and  does  not 
become  one  by  the  mere  fact  that  it  is 
prohibited  by  ordinance. 

An  ordinance  declaring  a 
■trnctnre  partially  destroyed  by 
flre  to  be  a  nuisance  where  it  is  per- 
mitted to  remain  in  such  a  condition 
after  a  notice  has  been  given  to  either 
remove,  repair  or  rebuild  the  same,  is 
held  void  where  it  contains  no  limita- 
tions as  to  its  dangerous  character 
either  by  reason  of  its  weak  condition 
or     its     location     or     surroundings. 


Evansville  v.  Miller,  146  Ind.  613,  45 
X.  E.  1054,  38  L.  R.  A.  161. 

45.  Mayor  of  City  of  Hudson  v. 
Thorne,  7  Paige's  Ch.  (N.  Y.)  261. 
The  court  here  said:  "The  ordinance 
of  the  common  council  in  this  case  is 
entirely  directed  against  the  erection 
of  the  building,  and  not  against  its 
occupation  in  such  a  manner  as  to 
render  it  dangerous  in  the  promotion 
or  originating  of  fires.  And  I  infer 
from  the  affidavits  that  the  ordinance 
was  so  framed  for  the  purpose  of 
merely  preventing  the  erection  of  such 
buildings,  as  it  appears  there  were 
such  buildings  already  in  existence, 
not  only  in  other  compact  parts  of  the 
city,  but  also  within  the  prohibited 
limits.  ...  I  am  satisfied  that 
under  the  provisions  of  this  charter 
the  legislature  never  intended  to  give 
to  the  common  council  the  power  to 
restrict  the  erection  of  wooden  or 
frame  buildings  within  the  city,  or 
to  limit  the  size  of  buildings  which 
individuals  should  be  permitted  to 
erect  on  their  own  premises.  And  as 
the  ordinance  is  an  attempt  to  exer- 
cise such  a  power  only,  it  is  inopera- 
tive and  void."     Per  The  Chancellor. 


491 


§  342  Municipal  Powers  and  Liabilities. 

order  of  said  body  politic."     The  court  here  said:     "  Whether, 
under  the  charter,  the  city  was  empowered  to  pass  such  an  ordi- 
nance, is  the  sole  question  presented  for  our  consideration.       The 
charter  contains  no  express  grant  of  such  power.     .     .     .     The 
clause  of  the  charter  just  cited  certainly  does  not  convey  an  un- 
limited authority  to  declare  that  to  be  a  nuisance  which  '  in  its 
nature,  or  its  situation,  or  use,  is  not  such.' 46    Neither  in  its  legal 
nor  general  meaning  does  the  word  nuisance   apply  to  wooden 
buildings,  even  in  towns  and  cities.     The  erection  and  occupation 
of  such  buildings  is  an  ordinary  exercise  of  the  property  rights  of 
the  owner  of  the  lands,  and  is  far  from  falling  within  the  legal 
definition  of  a  nuisance  at  common  law.     The  power  to  prohibit 
such  buildings  in  certain  localities  is  statutory,  and  is  a  limitation 
on  the  ordinary  rights  of  property.     Whilst  the  legslative  power 
to  authorize  such  prohibitions  is  now  conceded,  the  nature  of  the 
power  is  so  high  and  the  subjects  themselves  so  far  various  that 
it  seems  not  naturally  embraced  in  the  subordinate  power  to  de- 
clare and  abate  nuisances.     To  so  construe  it  would  be  to  extend 
the  grant  of  power  to  a  subject,  not,  we  think,  within  the  inten- 
tion of  the  law  makers  in  the  clause  cited.     .     .     .     We  are  also 
of  opinion  that  the  general  grant  of  power  to  establish  ordinances 
needful  for  the  welfare  of  the  city  did  not  authorize  the  passage 
of  such  ordinances  as  the  one  in  question.     Municipal  corpora- 
tions can  exercise  those  powers  only  '  which  are  expressly  or  im- 
pliedly conferred,  subject  to  such  regulations  or  restrictions  as 
are  annexed  to  the  grant.     The  general  disposition  of  the  court* 
of  this  country  has  been  to  confine  municipalities  within  the  lim- 
its that  a  strict  construction  of  the  grant  of  powers  in  their  char- 
ters will  assign  to  them  ;  thus  applying  substantially  the  same  rule 
that  is  applied  to  charters  of  private  corporations.     The  reason- 
able presumption  is,  that  the  State  has  granted,  in  clear  and  un- 
mistakable terms,  all  it  has  designed  to  grant.' 47    ...    To  infer 
the  power  to  establish  fire  limits  from  the  general  terms  used  in 
this  charter,  would  be  to  disregard  the  rule  of  construction  just 
cited,  and  would  go  far  in  the  direction  of  the  opposite  proposi- 
tion, that  specific  grants  of  power  are  unnecessary.     If  this  gen- 

46.  1  Dillon  on  Mun.  Corp.  §  308;  47.  Cooley  on  Const.  192,  195. 

Yates  v.  Milwaukee,  10  Wall.  498. 

492 


Municipal  Poweks  and  Liabilities.  §  342 

eral  clause  includes  the  power  claimed,  it  would  seem  difficult  to 
place  limits  on  its  meaning.  It  is  true  that  Judge  Dillon  in  his 
work  on  municipal  corporation,  says :  '  Municipal  corporations, 
with  power  to  provide  for  the  safety  of  their  inhabitants,  may  pro- 
hibit the  throwing  of  heavy  or  dangerous  articles  from  the  upper 
stories  of  buildings  into  the  streets  or  open  spaces  near  them, 
where  persons  are  in  the  habit  of  passing ;  and  may  establish  fire 
limits,  and  prevent  erection  therein  of  wooden  buildings.' 4S  Of 
the  cases  referred  to  in  the  note  to  this  section  Wadleigh  v.  Gil- 
man,49  is  the  only  case  where  it  is  decided  that  such  a  general 
grant  of  power  embraces  all  necessary  police  regulations,  and  in- 
cludes a  power  to  establish  fire  limits,  and  prevent  erection  therein 
of  wooden  buildings.  Indeed  there  is  not  among  the  cases  cited 
(and  it  is  proper  to  remark  that  they  are  cited  not  on  this  point 
alone,  but  on  other  points  growing  out  of  fire  ordinances)  any 
other,  nor  have  we  found  any  other,  unless  it  be  one  which  we  will 
now  refer  to  at  length,  where  such  an  ordinance  appears  to  have 
been  enacted  without  some  specific  legislative  authority."  And 
in  a  case  in  Connecticut  in  which  this  question  arose  it  appeared 
that  the  burgesses  of  a  borough  passed  a  by-law  establishing  fire 
limits  and  prohibiting  the  erection  within  such  limits  of  any 
wooden  or  frame  building  and  providng  that  "  all  new  buildings 
or  extensions  of  buildings  therein  shall  be  constructed  of  brick, 
stone,  iron,  or  concrete,  with  fireproof  roof,  upon  plans  to  be  ap- 
proved by  the  burgesses."  It  was  claimed  that  authority  to  pass 
this  ordinance  was  conferred  by  provisions  in  the  charter  of  th'j 
borough  authorizing  it  to  organize  a  fire  department  and  regu- 

48.  1  Dillon  on  Munic.  Corp.  §  therein  of  wooden  buildings."  In  the 
33g.  note  to  this  section  he  refers  to  the 

49.  12  Me.  403.  above  case  and   says  that  his  "  text 

50.  Pye  v.  Peterson,  45  Tex.  312,  is  referred  to  and  it  is  admitted  that 
313-315,  23  Am.  Rep.  608,  per  Gould,  it  is  supported  by  Wadleigh  v.  Gil- 
Associate  Justice.  man,  and  on  the  other  hand  the  Mayor 

Judge  Dillon,  in  his  work  on  mu-  of  Hudson  v.  Thome  is  considered  as 

nicipal   corporations,    §    405,   says   in  opposed  to  it.     Of  course  the  question 

the  text  that  municipal  corporations  in  each  case  must  be  decided  in  view 

"may,  where  this  is  consistent  with  of   all    the    legislation    of    the    State 

the    general    and    special    legislation  bearing  upon  it.     The  text  in  this  edi- 

applicable  to  the  municipality,  estab-  tion  has  been  slightly  modified." 
lish  fire  limits,  and  prevent  erection 

493 


342 


Municipal  Powers  and  Liabilities. 


late  the  mode  in  which  buildings  should  be  secured  against  fire, 
to  prevent  the  use  of  buildings  for  any  purpose  which  might  ex- 
pose the  borough  to  damage  by  fire,  to  appoint  inspectors  to  see 
that  the  ordinances  for  protection  against  fire  were  complied  with 
and  "  in  general  to  provide  adequate  protection  against  fire  and 
pass  suitable  police  and  health  regulations."  The  court  construed 
these  charter  provisions  as  conferring  no  power  upon  the  burgesses 
to  establish  fire  limits  and  to  require  that  all  new  buildings  within 
them  should  be  constructed  of  brick,  stone,  iron  or  concrete,  upon 
plans  approved  by  the  burgesses.  And  it  was  also  declared  that 
restrictions  on  the  building  or  repairing  of  wooden  structures  in 
a  city  are  invasions  of  private  rights  and  to  be  strictly  confined  to 
their  literal  import.51 


51.  Pratt  v.  Borough  of  Litchfield, 
62   Conn.    112,   25   Atl.   461.     It  was 
said  by  Judge  Torrance  in  this  case: 
"  From  an  inspection  of  these  sections 
it  is   quite   clear   that  the   power   in 
question  is  not  in  express  terms  given 
in  either  of  them.     It  is  equally  clear, 
we  think,  that  it  is  not  conferred  by 
fair   implication.     .     .     .     The  main 
contention  on  the  part  of  the  borough 
was,  that  the  power  was  conferred  by 
section  twenty  in  the  words  '  The  bur- 
gesses are  empowered     ...     to  pro- 
vide adequate  protection  against  fire.' 
Quite    a   number    of    authorities    are 
cited  upon  the  brief  in  behalf  of  the 
borough,  to   show  that  words  of  the 
same  or  nearly  similar  import  as  the 
words  above  quoted  have  been  held  to 
confer    the    power    to    pass    an   ordi- 
nance or  by-law  like  the  one  here  in 
question.     We    have    no    occasion    to 
dissent  from  or  criticize  the  authori- 
ties thus  cited.     The  question  now  i3 
one  of  construction,  and  in  the  solu- 
tion of  such  a  question  so  much  de- 
pends upon   circumstances    special   to 
each    particular   case    in    hand,  that 
decided  cases    are    seldom    of   much 


assistance  directly,  although  they 
may  be  quite  valuable  as  hints 
and  guides  in  correctly  applying 
rules  of  construction  or  as  con- 
taining correct  statements  of  those 
rules.  Perhaps  it  may  not  be  out 
of  place  here  to  advert  to  one  or 
two  of  the  general  rules  of  construc- 
tion applicable  to  the  present  case. 
In  the  first  place  a  municipal  corpo- 
ration can  exercise  no  power  which 
is  not  by  express  terms  or  by  fair  im- 
plication conferred  upon  it.  (Thom- 
son v.  Lee  County,  3  Wall.  (U.  S.) 
327;  Minturn  v.  Larue,  23  How.  (U. 
S.)  435;  Willard  v.  Borough  of  Kil- 
lingworth,  8  Conn.  247;  City  of 
Bridgeport  v.  Housatonic  R.  R.  Co., 
15  Conn.  475.)  In  the  next  place 
any  doubt  or  ambiguity  arising  out 
of  the  terms  used  by  the  legislature 
must  be  resolved  in  favor  of  the  pub- 
lic. (Minturn  v.  Larue,  23  How.  (U. 
S.)  435;  Sutherland  on  Stat.  Con- 
struction, §  380  and  cases  cited  in 
footnote.)  Restrictions  on  the  build- 
ing or  repairing  ol  wooden  structures 
in  the  populous  part  of  a  city,  com- 
monly designated  as  fire  limits,  are 


40L 


Municipal  Powers  and  Liabilities. 


§343 


§  343.  Same  subject  continued. — As,  however,  is  stated  in  the 
preceding  section,  it  is  difficult  to  reconcile  the  various  decisions. 
So  it  has  been  decided  that  a  city  may  establish  fire  limits  and  pro- 
hibit the  erection  within  such  limits  of  a  certain  class  of  structures 
where  its  acts  do  not  contravene  the  constitution.52  And  in  a  case 
in  Indiana  it  has  been  declared  that  a  wooden  building  is  not  in 
itself  a  nuisance  but  may  become  such  by  reason  of  its  erection 
in  a  place  prohibited  by  law  and  where  the  safety  of  adjoining 
property  is  endangered  in  which  case  it  may  be  treated  by  the 
municipal  authorities  as  a  nuisance  and  its  erection  prohibited."3 


invasions  of  private  right  and  are  to 
be  confined  strictly  to  their  literal 
import.  (Sutherland  on  Stat.  Con- 
struction, §  367;  Booth  v.  The  State, 
4  Conn.  65.)  Lastly,  the  words  of 
the  charter  from  which  it  is  claimed 
the  power  in  question  is  granted, 
must  be  construed  in  connection  with 
the  entire  charter,  and  in  view  of  the 
general  legislation  in  cur  State  in 
matters  of  this  kind.  So  far  as  we 
are  aware  general  language  like  that 
here  in  question  has  never,  by  the 
profession  or  by  the  legislature,  been 
deemed  sufficient  to  confer  authority 
to  establish  fire  limits.  .  .  .  Com- 
ing now  to  the  more  particular  consid- 
eration of  the  clause  in  question,  we 
observe  that  even  if  it  stood  alone  in 
a  section  by  itself  to  construe  it  as 
conferring  power  to  etsablish  fire 
limits  would  be  a  very  forced  con- 
struction. It  would  be  opposed  to  the 
fair  natural  meaning  of  the  words  em- 
ployed. .  .  .  Again  when  the  power 
to  establish  fire  limits  has  been  ex- 
pressly granted  by  the  legislature,  it 
has  been  customary  in  the  charter  to 
set  some  limits  to  the  exercise  of  such 
an  important  power;  but,  if  in  the 
case  at  bar,  these  words  confer  such 
a  power,  it  is  given  practically  with- 


out limits,  save  the  discretion  of  the 
burgesses." 

52.  Brady  v.  Northwestern  Ins. 
Co.,  11  Mich.  425.  As  to  right  to  es- 
tablish fire  limits  in  particular  cases 
and  to  prohibit  the  erection  of  wooden 
buildings  within  such  limits,  see 
Montgomery  v.  Louisville  &  N.  R.  Co., 
84  Ala.  127;  McCloskey  v.  Kreling, 
76  Cal.  511;  Brown  v.  Hunn,  27  Conn. 
332,  71  Am.  Rep.  71;  Des  Moines  v. 
Gilchrist,  67  Iowa,  210,  56  Am.  Rep. 
341;  State  v.  O'Neill,  40  La.  Ann. 
1171;  Cordes  v.  Miller,  39  Mich.  581, 
33  Am.  Rep.  430;  Eichenlaub  v.  St. 
Joseph,  113  Mo.  395,  18  L.  R.  A.  590; 
State  v.  Kearney,  25  Neb.  262;  New 
York  Fire  Dep't.  v.  Buhler,  35  N.  Y. 
177;  Cleveland  v.  Lenze,  27  Ohio  St. 
383;  Hubbard  v.  Medford,  20  Ore. 
315;  Olympia  v.  Mann,  1  Wash.  389, 
12  L.  R.  A.  150;  Carroll  v.  Lynch- 
burg, 84  Va.  803. 

53.  It  was  said  by  the  court  in  this 
case:  "A  wooden  building  is  not  in 
itself  a  nuisance,  but  when  erected  in 
a  place  prohibited  by  law,  and  where 
it  endangers  the  safety  of  adjoining 
property,  it  may  become  a  nuisance, 
'if  the  locality  and  character  of  such 
a  building  do  endanger  the  safety  of 
surrounding  buildings,  then  it  may  be 


405 


343i 


Municipal  Powers  and  Liabilities. 


So  in  a  case  in  Louisiana  it  has  been  decided  that  the  power  to  fix 
fire  limits  and  to  forbid  the  erection  of  buildings  formed  of  com- 
bustible materials  within  such  limits  is  inherent  in  a  municipal 
corporation  and  does  not  depend  on  any  legislative  grant,  The 
words  of  the  court  are  pertinent  in  this  connection,  it  being  de- 
clared that  "  It  seems  to  us  clear  that  where  a  municipal  corpora- 
tion is  vested  with  such  powers,54  and  the  compactness  of  its  con- 
struction would  increase  the  hazard  of  conflagration,  the  corpor- 
ate authorities  may  fix  what  is  known  as  a  fire  district  and  forbid 
the  erection  of  wooden  buildings  therein.  No  town  or  city,  com- 
pactly built,  can  be  said  to  be  well  ordered  or  well  regulated  which 
neglects  precautions  of  this  sort.  It  is  its  duty  to  the  public  to 
take  such  measures  as  may  be  practicable  to  lessen  the  hazard  and 
danger  of  fire.  The  public  good  and  safety  are  superior  to  the 
individual  rights  of  the  inhabitants,  and  under  this  principle  such 
regulations  are  not  the  divestiture  of  the  individual  right  of  owner- 
ship and  use,  but  is  only  conforming  the  use  of  individual  prop- 


treated  as  a  nuisance,  and  a  govern- 
mental body,  having  authority  to  leg- 
islate upon  such  subjects,  may  pro- 
hibit its  erection  in  places  where  it 
would  endanger  the  safety  of  sur- 
rounding property.  There  are  not 
many  things  that  are  not  nuisances 
per  se,  but  which  become  such  when 
placed  in  locations  forbidden  by  law, 
and  where  they  essentially  interfere 
with  the  enjoyment  of  life  or  prop- 
erty. ...  It  must  rest  with  the 
governmental  authorities  of  the  lo- 
cality to  determine  in  what  places 
wooden  buildings  shall  not  be  erected, 
for  courts  cannot  exercise  legislative 
functions  in  such  matters. 
Where,  therefore,  a  valid  municipal 
ordinance  prohibits  the  location  of 
wooden  buildings  within  certain  lim- 
its, and  it  appears,  as  it  does  here, 
that  the  building  is  located  within  the 
prohibited  district,  and  endangers  the 
safety    of    surrounding    property,    it 


may  properly  be  treated  as  a  public 
nuisance,  and  as  such  abated.  We 
are  not  unmindful  of  the  rule  that  a 
municipal  corporation  has  no  power 
to  treat  a  thing  as  a  nuisance  which 
cannot  be  one;  but  while  we  recog- 
nize this  rule,  we  also  lecognize  the 
equally  well  settled  rule  that  it  has 
the  power  to  treat  as  a  nuisance  a 
thing  that  from  its  character,  loca- 
tion and  surroundings,  may,  and  does, 
become  such."  Baumgartner  v.  Hasty, 
100  Ind.  575,  50  Am.  Eep.  830,  per 
Elliott,  J. 

54.  The  city  was  empowered  by  its 
charter  to  adopt  all  rule3,  ordinances, 
regulations  and  by-laws  for  the  gen- 
eral government,  improvement  and 
police  of  the  town,  and  prescribe  the 
manner  of  enforcing  them,  not  con- 
trary to  or  inconsistent  with  the  con- 
stitutions and  laws  of  this  State  and 
the  United  States. 


496 


Municipal  Powers  and  Liabilities.  §  344 

erty  to  the  necessities,  safety  and  interests  of  the  public.  It  is  a 
regulation  of  its  enjoyment."  55  And  in  a  case  in  Maine  it  has 
been  decided  that  a  municipality  authorized  "  to  ordain  and  estab- 
lish such  acts,  laws  and  regulations,  not  inconsistent  with  the  con- 
stitution and  laws  of  the  State,  as  shall  be  needful  to  the  good 
order  of  said  body  politic  "  may,  by  ordinance,  prohibit  the  erec- 
tion of  wooden  building  within  certain  limits  of  the  city.56  Again, 
in  a  recent  case  in  Illinois,  it  is  decided  that  municipalities  organ- 
ized under  the  city  and  villaga  act  in  that  State,  have  power  to 
regulate  by  ordinance  the  construction,  and  removal  of  wooden 
buildings  anywhere  within  the  corporate  limits  of  the  municipali- 
ties as  incident  to  the  power  to  declare  what  shall  be  nuisances 
and  to  abate  and  remove  the  same  and  to  regulate  the  police  of  the 
town  although  such  powers  are  conferred  upon  municipalities  only 
in  general  terms.57 

§  344.  Same  subject — Conclusion. — In  the  consideraion  of  this 
question  the  elementary  principle  as  to  the  power  of  municipal  cor- 
porations should  in  all  cases  be  borne  in  mind,  that  is,  that  such 
bodies  can  only  exercise  those  power  which  are  either  expressly  con- 
ferred upon  them  or  arise  by  necessary  implication  out  of  some 
delegated  power.58  If  this  principle  controls,  and  it  is  generally 
conceded  that  it  does,  then  it  would  seem  that  in  the  absence  of 
power  so  conferred,  a  municipality  could  not  prohibit  the  erection 
of  a  wooden  or  other  structure  within  its  limits.  Again,  a  muni- 
cipality cannot  declare  that  to  be  a  nuisance  which  is  not  so  in 
fact  or  does  not  come  within  the  common  law  or  statutory  idea  of  a 
nuisance.  This  is  a  recognized  principle  which  controls  in  con- 
struing ordinances  or  by-laws  of  a  municipality  declaring  what  is 
a  nuisance.59  A  wooden  building  or  structure  is  not  a  nuisance 
per  se,  and  the  true  rule  would  seem  to  be  that  it  does  not  become 
a  nuisance  by  reason  of  an  ordinance  declaring  it  such,  where  it 
is  not  in  fact  one  within  the  meaning  of  the  common  law  or 
a  statutory  definition  of  a  nuisanca 

55.  Mayor  &  Council  of  Monroe  v.  57.  Paterson  v.  Johnson,  214   111. 
Hoffman,   29   La.   Ann.    651,    29   Am.       481,  73  N.  E.  761. 

Rep.  345,  per  Howell,  J.  58.  See  §   330,  herein. 

56.  Wadleigh    v.    Gilman,    12    Me.  59.  See   §   332,    herein. 
403,  28  Am.  Dec.  188. 

497 


fc   o  -■> 


Municipal  Powers  and  Liabilities. 


0i,,.   Ivlunicipal  powers  to  summarily  abate — Generally. — 

rule    i^    declared    to    be     settled,     without    dissent,     that, 

of     authority,     public     corporations 

power,     cause     the     abatement     of 

nuisance      cannot      otherwise      be 

60 


§   r 
"he 
without     a     special     grant 
may,     as     a     common     law 
nuisances,      and      if      the 


abated,  may  destroy  the  thing  which  constitutes  it 
And  it  is  said  that  a  municipal  corporation  has  not  only  the  right, 
but  is  also  under  the  obligation,  to  remove  nuisances  which  may 
endanger  the  health  of  its  citizens ;  that  it  has  the  power  to  decide 
in  what  manner  this  shall  be  done;  and  that  its  decision  is  con- 
clusive unless  it  transcends  the  power  conferred  by  the  charter  or 
violates  the  constitution.603  Again,  where  power  is  conferred  upon 
a  municipal  corporation  to  protect  the  health  of  its  citizens  and 
to  maintain  the  cleanliness  of  the  city,  it  may  adopt  reasonable 
ordinances  for  the  abatement  or  removal  of  nuisances.61  And  a 
municipality  may  regulate  the  use  of  property  &o  as  to  prevent  it 
becoming  pernicious  to  citizens  generally  and  when  the  use  creates 
a  nuisance,  may  prohibit  owner  from  using  it.62  Kor  will  a  city 
be  liable  in  damages  for  abating  that  which  is  clearly  a  nuisance 
where  the  owner  of  the  property  has  failed  to  abate  it  after  being 
given  a  reasonable  opportunity  to  do  so  and  the  city  has  acted  in 
a  lawful  manner  and  no  injury  to  property  has  been  inflicted  other 
than  is  actually  necessary  to  abate  such  nuisance.63    If  the  charter 


60.  Baumgartner  v.  Hasty.  100 
Ind.  575,  50  Am.  Rep.  830,  per  Elliott, 
J.  See,  also,  Hart  v.  City  of  Albany, 
9  Wend.  (X.  Y.)  571,  24  Am.  Dec. 
165;  Commonwealth  v.  Yost,  11  Pa. 
Super.  Ct.  323.  See  Kennedy  v. 
Phelps,  10  La.  Ann.  227. 

60a.  Baker  v.  City  of  Boston,  12 
Pick.  (Mass.)  184,  22  Am.  Dee.  421. 
"  The  sovereign  power  of  a  commu- 
nity may  and  ought  to  prescribe  the 
manner  of  exercising  individual  rights 
over  property.  It  is  for  the  better 
protection  and  enjoyment  of  that  ab- 
solute dominion  which  the  individual 
claims.  The  powers  rest  on  the  im- 
plied right  and  duty  of  the  supreme 


power  to  protect  all  by  statutory  reg- 
ulations, so  that,  on  the  whole  the 
benefit  of  all  is  promoted."  Vander- 
bilt  v.  Adams,  7  Cow.  (N.  Y.)  349, 
351,  per  Woodworth,  J. 

61.  State  v.  Morris,  47  La.  Ann. 
16G0,   18  So.  710. 

62.  Louisville  City  R.  Co.  v.  Louis- 
ville, 8  Bush  (Ky.),  416,  422;  Ash- 
brook  v.  Commonwealth,  1  Bush 
(Ky.),  139,  89  Am.  Dec.  616. 

63.  Orlanda  v.  Pragg,  31  Fla.  Ill, 
12  So.  368,  19  L.  R.  A.  196,  41  Am. 
&  Eng.  Corp.  Cas.  398;  Miller  v. 
Sergeant,  10  Ind.  App.  22,  37  N.  E. 
418;  Waggoner  v.  City  of  South 
Gorin,  88  Mo.  App.  25. 


498 


Municipal  Powers  and  Liabilities. 


§346 


of  a  city  contains  a  provision  as  to  the  abatement  of  nuisances  gen- 
erally and  there  is  also  a  specific  provision  in  regard  to  the  abate- 
ment of  a  nuisance  of  a  particular  kind,  the  specific  provision  will 
be  applicable  in  case  a  nuisance  of  that  particular  kind  arises  to  the 
exclusion  of  the  general  provision.64  And  a  general  statute  will 
not  control  or  repeal  local  or  particular  laws  in  reference  to  the 
powers  of  a  municipality  over  nuisances  unless  they  are  named 
therein  or  necessarily  embraced.65 


§  34 G.  Limitations  or  power  to  summarily  abate  or  remove. — 
A  power  given  to  a  municipal  corporation  to  abate  nuisances  in 
any  manner  it  may  deem  expedient,  is  not  an  unrestricted  power. 
Such  means  only  are  intended  as  are  for  the  public  good.  The 
abatement  must  be  limited  by  its  necessity,  and  no  wanton  or  un- 
necessary injury  to  the  property  or  rights  of  individuals  must  be 
committed.66  It  must  be  so  done  as  to  cause  the  least  injury  to 
private  rights,67  and  in  such  a  manner  as  not  to  deprive  an  owner 
of  the  use  of  his  property  unless  it  is  necessary.68     And  a  munici- 


64.  Horbach  v.  City  of  Omaha,  54 
Neb.  83,  74  N.  W.  83,  holding,  also, 
that  a  statute  conferring  power  upon 
a  municipality  "  to  require  any  and 
all  lots  or  pieces  of  ground  within  the 
city  to  be  drained,  filled,  or  graded, 
so  as  to  prevent  stagnant  water  banks 
of  earth  or  any  other  nuisance  ac- 
cumulating or  existing  thereon;  and 
upon  the  failure  of  the  owners  of  such 
lots  or  pieces  of  ground  to  fill,  drain 
or  grade  the  same,  when  so  required, 
tlie  council  may  cause  such  lots  or 
pieces  of  ground  to  be  drained,  filled, 
or  graded,  and  the  cost  and  expense 
thereof  shall  be  levied  upon  the  prop- 
erty so  filled,  drained,  or  graded,  and 
collected  as  other  special  taxes,"  was 
not  invalid  but  rather  a  proper  exer- 
cise by  the  State  of  its  police  power. 

65.  Mayor  of  Montezuma  v.  Minor, 
70  Ga.  191,  holding,  also,  that  a  prior 
general  law  providing  for  the  abate- 


ment of  a  nuisance  does  not  prevent 
the  legislature  from  conferring  upon 
a  town  or  municipality  a  power  to 
abate,  and  a  town,  where  its  charter 
so  provides  may  have  full  power  to 
abate  a  nuisance  on  report  of  the 
board  of  health,  even  though  such  nui- 
sance consists  of  a  mill  and  ma- 
chinery run  by  water. 

66.  Babeock  v.  City  of  Buffalo,  56 
X.  Y.  208.  "  The  taking  or  injuring 
of  private  property  for  the  public 
benefit  is  the  exercise  of  a  high  power, 
and  all  the  conditions  and  limitations 
provided  by  law,  under  which  it  may 
be  done  must  be  closely  followed.  Too 
much  caution  in  this  respect  cannot 
be  observed  to  prevent  abuse  and  op- 
pression." Per  Hall,  J.,  in  Frank  v. 
City  of  Atlanta,  72  Ga.  428,  432. 

67.  State  v.  Mayor  of  Newark,  34 
N.  J.  L.  2G4. 

68.  Where  the  municipal    au- 


499 


346 


Municipal  Powers  and  Liabilities. 


pality  cannot  arbitrarily,  by  ordinance,  provide  for  the  destruction 
of  private  property  or  compel  the  owner  thereof  to  destroy  the 
same,  unless  it  is  in  fact  a  nuisance.69  And  while  a  charter  con- 
fers the  power  upon  municipal  authorities  to  prevent  and  remove 
all  nuisances,  it  does  not  confer  the  right  to  declare  that  a  particu- 
lar structure  or  business,  not  condemned  by  any  law  or  ordinance, 
is  a  nuisance  and  to  have  the  structure  removed  or  the  business 
stopped  or  interfered  with.70  So  a  city  empowered  by  its  charter 
to  declare  what  shall  be  a  nuisance  and  to  prevent  and  remove  the 
same,  is  not  thereby  authorized  to  arbitrarily  declare  any  particu- 
lar thing  a  nuisance  which  had  not  theretofore  been  pronounced  to 
be  such  by  law  or  so  adjudged  by  judicial  determination.71    In  the 


thorities  fill  a  cellar  with  dirt  to 
abate  an  alleged  nuisance,  the  act  ia 
unauthorized  where  it  appears  that 
the  nuisance  could  be  abated  by  a 
drain.  Waggoner  v.  City  of  South 
Gorin,  88  Mo.  App.  25. 

69.  Pieri  v.  Town  of  Shieldsboro, 
42  Miss.  493. 

70.  Lake  v.  City  of  Aberdeen,  57 
Miss.  260.  See  Baldwin  v.  Smith,  82 
111.  162.  "  It  is  only  certain  kinds  of 
nuisances  that  may  be  removed  or 
abated  summarily  by  the  act  of  in- 
dividuals or  by  the  public,  such  as 
those  which  affect  the  health,  or  inter- 
fere with  the  safety  of  property  or 
person,  or  are  tangible  obstructions 
to  streets  and  highways  under  cir- 
cumstances presenting  an  emergency; 
such  clear  cases  of  nuisances  per  se, 
are  well  understood."  Per  Stone,  J., 
in  City  of  Denver  v.  Mullen,  7  Colo. 
345,  354,  3  Pac.  693. 

An  order  to  abate  not  conclu- 
sive. An  order  of  the  municipal  au- 
thorities ordering  the  destruction  of 
property  on  the  ground  that  it  consti- 
tutes a  nuisance  has  been  decided  in 
New  York  not  to  be  conclusive  where 
granted  without  a  hearing,   it  being 


held  that  such  an  order  is  reviewable 
and  that  the  owner  of  such  property 
is  entitled  to  a  hearing  in  the  courts 
upon  the  question.  Golden  v.  New 
York  Health  Dept.  21  App.  Div.  N. 
Y.)  420,  47  N.  Y.  Suppl.  623.  But 
see  Brown  v.  District  Council  of  Nar- 
rangansett,  21  R.  I.  503,  44  Atl.  932, 
wherein  it  is  decided  that  where  a 
statute  authorizes  a  municipality  to 
summarily  abate  nuisances,  and  there 
is  no  provision  therein  allowing  an 
appear,  an  order  of  abatement  is  not 
reviewable  it  being  declared  that  to 
permit  a  nuisance  to  exist  until  an 
appeal  could  be  tried  might,  together 
with  such  further  proceedings  in  con- 
nection therewith  as  might  be  had, 
seriously  endanger  the  health  and 
lives  of  the  entire  community. 

71.  City  of  Denver  v.  Mullen,  7 
Colo.  345,  3  Pac.  693.  Examine  Darst 
v.  People,  51  111.  286,  2  Am.  Rep.  201. 

In  a  case  in  Georgia  it  is  said: 
"  Neither  the  municipal  authorities 
of  any  city  in  this  state  nor  any  de- 
partment of  a  city  government  have 
the  legal  right  summarily  to  abate 
a  nuisance,  without  first  having  given 
reasonable  notice,  to  the  person  main- 


500 


Municipal  Powers  and  Liabilities. 


347 


application  of  these  general  rules  it  has  been  decided  that  the  trus- 
tees of  an  incorporated  village,  who  are  authorized  by  its  charter 
and  by-laws  to  abate  a  nuisance,  but  are  required  to  first  give 
notice  and  an  order  to  the  owner  to  remove  it,  cannot  justify  their 
acts  in  removing  a  fence,  under  a  notice  to  remove  it,  when  the 
court  below  found  that  it  was  not  the  fence  nor  the  lot,  but  the 
use  the  lot  sheltered  by  the  fence,  that  created  the  nuisance.72 

§  347.  Municipal  authorities  proceed  at  their  peril  in  sum- 
mary abatement  of  a  nuisance. — Where  municipal  authorites  sum- 
marily abate  a  claimed  nuisance  by  the  destruction  of  private 
property,  they  do  so  at  their  peril  where  they  proceed  without  first 
having  the  property  condemned  as  a  nuisance  by  appropriate  pro- 
ceedings and  in  an  action  against  them  in  such  a  case  for  its  value, 
the  burden  has  been  held  to  rest  on  them  to  show  that  it  was  in 
fact  a  nuisance.73  As  was  said  in  a  case  in  Georgia  in  which  the 
right  of  the  authorities  to  proceed  in  a  summary  manner  in  re- 
moving a  mill  pond  on  the  ground  that  it  was  a  nuis- 
ance   were    questioned :    "  Whenever    the    city    authorities    pro- 


taining  the  thing  or  doing  the  act 
alleged  to  be  a  nuisance,  of  the  time 
and  place  of  hearing  the  question 
whether  such  thing  or  the  doing  of 
such  act  constitutes  a  nuisance,  and 
the  determination  by  such  body  that 
the  thing  so  maintained  or  the  act 
done,  in  law,  constitutes  a  nuisance; 
and  this  rule  of  law  applies  to  all 
acts  and  things  alleged  to  be  nui- 
sances except  those  which  are  by  the 
law  expressly  declared  to  be  nui- 
sances, or  which  are  indisputably  so 
per  se."  Western  &  Atlantic  R.  Co. 
v.  City  of  Atlanta,  113  Ga.  537,  541, 
38  S.  E.  996,  54  L.  R.  A.  294,  per 
Little,  J. 

In  the  case  of  a  business  which 
is  not  a  nuisance  per  se,  it  has  been 
decided  that  it  requires  action  of  a 
judicial  nature  to  determine  whether 
it  is  so  conducted  as  to  become  liable 


to  abatement.     State  v.  Cadwallader, 
36  N.  J.  L.  283. 

72.  Verder  v.  Ellsworth,  59  Vt. 
354,   10  Atl.   89. 

73.  Mayor  of  Savannah  v.  Mulli- 
gan, 95  Ga.  323,  22  S.  E.  621,  51 
Am.  St.  R.  86,  29  L.  R.  A.  303; 
Gunning  System  v.  City  of  Buffalo,  62 
App.  Div.  (N.  Y.)  497,  71  N.  Y. 
Supp.  155.  Compare  as  to  burden  of 
proof,  City  Council  of  Montgomery  v. 
Hutchinson,  13  Ala.  573,  holding  that 
the  action  of  a  common  council  declar- 
ing a  house  in  the  city,  from  its  dilap- 
idated condition,  endangering  the 
lives  of  passersby,  a  nuisance,  is 
prima  facie  evidence  of  the  fact,  cast- 
ing on  the  party  complaining  of  the 
act  of  the  city,  directing  the  razure 
of  his  house,  the  burthen  of  proving 
it  was  not  a  nuisance. 


501 


§  348  Municipal  Powebs  and  Liabilities. 

ceed  in  a  summary  manner,  authorized  by  their  charter, 
they  do  so  at  their  peril.  The  owner  of  the  pond  in 
this  case  would  not  have  been  remediless  at  law.  He 
would  have  had  a  right,  in  a  suit  at  law,  to  establish,  if  he  could, 
that  the  pond  was  not  a  nuisance;  and  if  he  could  show  that  to 
the  satisfaction  of  the  jury,  he  would  be  entitled  to  such  damages 
as  he  sustained  by  the  summary  action  of  the  city  authorities.  It 
would  be  a  great  wrong  upon  the  people  living  in  crowded  cities 
to  hold  that,  in  every  case  of  nuisance,  affecting  perhaps  the  lives 
of  hundreds1  or  thousands  of  the  inhabitants,  the  city  authorities 
would  have  to  go  through  a  long  and  tedious  trial  before  a  court 
and  jury,  before  they  could  abate  or  abolish  the  nuisance.  But,  as 
said  before,  when  they  do  act,  they  must  be  certain  that  they  are 
right  and  that  the  thing  abated  is  a  nuisance,  or  they  will  subject 
the  municipality  to  damages."  u  And  a  similar  view  is  expressed 
hj  the  court  in  a  New  York  case.75 

i 

§  348.  Particular  instances  of  power  of  municipality  to  abate 

nuisances. — In  the  exercise  of  the  powers  conferred  upon  a  muni- 
cipality to  remove  and  abate  nuisances  it  has  been  decided  that 
the  municipal  authorities  may  require  lots  to  be  filled  where 
they  are  so  much  below  the  grade  of  a  street  as  to  cause  a  nuis- 
ance by  reason  of  the  accumulation  thereon  of  waters  which  become 
stagnant.76    And  it  has  likewise  been  held  that  a  municipality  may 

74.  Americus  v.  Mitchell,  79  Ga.  constitutional  principles,"  per  Earl, 
807,  809,  5  S.  E.  201,  per  Sim-  J.,  in  People,  Copcutt  v.  Yonkers 
mons,  J.  Board  of  Health,  140  N.  Y.  1,  10,  35 

75.  "Whoever  abates  an  alleged  N.  E.  320,  55  N.  Y.  St.  R.  416,  37 
nuisance  and  thus  destroys  or  injures  Am.  St.  R.  522,  23  L.  R.  A.  481. 
private  property  or  interferes  with  affirming  71  Hun.  84,  54  N.  Y.  St. 
private  rights,  whether  he  be  a  pub-  R.  317,  24  N.  Y.  Suppl.  629. 

lie  officer  or  a  private  person,  unless  76.  City  of  Independence  v.  Purdy, 

he  acts  under  the  judgment  or  order  46  Iowa,  202. 

of  a  court  having  jurisdiction,  does  it  A  city  cannot  raise  lots  higher 

at  his  peril,  and  when  his  act  is  chal-  than  is  necessary  to  abate  the  nui- 

lenged  in  the  regular  judicial  tribun-  sance  caused   thereby.     Bush  v.   City 

als    is   must   appear    that    the    thing  of  Dubuque,  69  Iowa,  233,  28  N.  W. 

abated  was  in  fact  a  nuisance.     This  542. 

rule  has  the  sanction  of  public  policy  "Where     the     city     creates     the 

and    is    founded    upon    fundamental  nnisance  complained   ot,  in   such  a 

502 


Municipal  Powers  axi>  Liabilities. 


§348 


fill  up  a  creek  or  ditch  where  it  is  of  such  a  character  as  to  be 
injurious  to  health.77  So  in  the  case  of  a  manufactory  which  is 
injurious  to  public  health  a  city  may  abate  the  same.78  And  the 
summary  abatement  of  the  use  of  a  cesspool  on  private  premises  by 
the  municipal  authorities  by  the  severance  of  a  connecting  pipe  has 
been  held  a  proper  exercise  of  the  municipal  powers  where  the  con- 
struction or  maintenance  of  such  vaults  had  been  prohibited  by  a 
valid  ordinance.79  But  it  has  been  decided  that  sufficient  grounds 
for  the  destruction  of  a  bill  board  as  a  nuisance  are  not  shown  by 
the  fact  that  it  may  become  a  place  for  the  resort  of  lewd  characters 
or  that  rubbish  may  be  deposited  there.80  And  it  has  also  been  de- 


case  it  cannot  require  the  filling  of 
such  lot.  City  of  Hannibal  v.  Rich- 
ards,  82  Mo.  330. 

77.  Baker  v.  City  of  Boston,  12 
Pick.    (Mass.)    184,  22  Am.  Dec.  421. 

In  the  case  of  an  irrigating 
ditch  it  should  not  be  filled  where 
the  nuisance  consists  in  the  manner 
in  which  it  is  maintained  and  a  de- 
struction thereof  by  filling  it  is  not 
necessary  to  abate  the  nuisance. 
Fresno  v.  Fresno  Canal  &  I.  Co.,  98 
Cal.  179,  32  Pac.  943. 

The  filling  of  a  ditch  is  not 
justified  where  the  nuisance  created 
by  it  can  be  abated  by  a  proper  drain- 
age thereof.  And  in  a  case  in  New 
Jersey,  where  it  was  so  held,  it  was 
said  by  the  court :  "  It  is  true  that 
the  council  should  be  allowed  consid- 
erable discretion  in  the  mode  to  be 
adopted,  yet  it  is  very  important,  out 
of  a  due  regard  to  private  rights, 
that  the  superintending  jurisdiction 
of  this  court  over  such  proceedings 
should  be  firmly  maintained,  and  the 
council  kept  within  the  reasonable 
rules  of  law.  There  seems  to  be  no 
practical  difficulty,  from  the  evi- 
dence in  sufficiently  draining  this 
ditch,  and  at  the  same  time  leaving 


it  for  all  the  legitimate  uses  of  the 
business.  In  that  light  the  council 
made  a  wrong  selection  of  their  pow- 
ers. Then  action  should  have  been 
directed  to  the  condition  in  which  the 
ditch  was  kept,  and  the  abatement  of 
that  condition,  rather  than  in  filling 
it  up  and  depriving  the  owners  of  all 
use  of  it.  To  defeat  its  use  for  the 
legitimate  purpose  of  drainage  of  the 
lots  and  receiving  the  waste  water  of 
the  business,  was  an  unreasonable 
and  unnecessary  invasion  of  private 
rights,  when  the  nuisance  complained 
of,  as  the  case  stands  before  us,  could 
have  been  remedied  by  the  less  se- 
vere method  of  compelling  a  proper 
outlet  or  drainage  for  the  ditch." 
State  Rodwell  v.  City  of  Newark,  34 
N.  J.  L.  264,  267,  per  Bedle,  J. 

78.  Kennedy  v.  Phelps.  10  La.  Ann. 
227.  See  Fertilizing  Co.  v.  Hyde 
Park,  97  U.  S.  659. 

79.  Sprigg  v.  Garrett  Park,  89  Md. 
406,  43  Atl.   813. 

80.  Gunning  System  v.  City  of 
Buffalo,  62  App.  Div.  (N.  Y.)  497, 
71  N.  Y.  Suppl.  155. 

The  court  said  in  this  case:  "It 
is  said  by  the  learned  corporation 
counsel    in    his    affidavit    that    these 


503 


§349 


Municipal  Powees  and  Liabilities. 


cided  that  where  a  dam  is  erected  by  one  under  legislative  author- 
ity, a  municipality  cannot,  in  the  exercise  of  its  power  over  nuis- 
ances, summarily  remove  such  dam  on  the  ground  that  it  is  a 
nuisance  which  endangers  the  public  health  where  the  owner 
thereof  has  been  given  no  notice  or  opportunity  to  be  heard  upon 
the  question.81 


§  349.  Right  of  municipality  to  destroy  building. — In  the  ex- 
ercise of  the  power  possessed  by  a  municipality  to  remove  a  nuis- 
ance which  affects  or  endangers  the  health  or  safety  of  the  public, 
it  has  been  decided  that  where  a  building  is  a  nuisance  of  such  a 
character  it  may  be  removed  or  destroyed  by  the  municipal  authori- 
ties where  this  is  the  only  way  by  which  the  nuisance  can  be 
abated.  So  it  has  been  decided  that  tenements  consisting  of  two 
old  and  intrinsically  valueless  houses,  on  a  lot  in  an  improving  and 
flourishing  part  of  a  city,  which  are  filthy  and  crowded  with  filthy 
tenants,  and  which  have  been  occupied  by  patients  infected  with 
smallpox  and  which  had  also  been  condemned  as  a  nuisance  by  the 
board  of  health  of  the  city,  are  nuisances  and  may  be  removed  by 
the  city  authorities.82    And  where  a  municipality  is,  by  its  charter, 


high  structures  erected  upon  vacant 
lots,  will  be  a  place  of  resort  for 
lewd  and  vicious  characters,  a  place 
where  nuisances  are  committed  and 
also  a  place  of  deposit  for  rubbish  and 
all  kinds  of  filth  and  refuse,  whereby 
the  peace  and  safety,  as  well  as  the 
health  of  the  public  will  be  endan- 
gered.' Conceding  for  the  purpose  of 
the  argument  that  the  prophecy  of 
the  affiant  will  come  true,  there  is 
no  suggestion  upon  the  record  that 
such  things  have  happened,  and  there 
is  no  reason  to  suppose  that,  if  such 
things  do  happen,  the  nuisance,  if  it 
is  one,  cannot  be  abated  in  some  other 
way  than  by  the  destruction  of  the 
signboards.  When  any  building  or 
structure  becomes  a  nuisance,  not  be- 
cause of  its  inherent  qualities,  but  be- 


cause of  the  use  to  which  it  is  put  or 
the  manner  of  that  use,  it  is  not  to  be 
destroyed  to  abate  the  nuisance,  un- 
less such  destruction  is  absolutely 
necessary.  If  the  nuisance  can  be 
abated  by  regulating  the  use,  that  is 
all  that  is  permitted  to  be  done. 
(Wood  Nuis.  §  740;  Health  Depart- 
ment v.  Dassori,  21  App.  Div.  (N. 
Y.)  348.)  So,  even  if  the  conse- 
quences apprehended  by  the  defend- 
ants from  the  existence  of  these 
structures  should  ensue,  it  would  not 
then  be  necessary  to  destroy  them  for 
the  purpose  of  preventing  that  use," 
per   Rumsey,  J. 

81.  Clark  v.  City  of  Syracuse,  13 
Barb.    (N.   Y.)    32. 

82.  Ferguson  v.  City  of  Selma,  43 
Ala.  398. 


504 


Municipal  Powers  and  Liabilities. 


§349 


authorized  to  prevent  the  erection  of  wooden  buildings  within 
certain  limits  and  to  remove  buildings  erected  in  violation  of  such 
ordinance  it  may,  where  a  building  is  so  erected,  remove  it,  but 
where  there  has  been  in  fact  no  violation  of  the  ordinance  and  a 
building  is  removed,  the  city  will  be  liable  for  its  wrongful  re- 
moval.83 The  fact  that  a  municipality  possesses  the  power  to 
destroy  a  building  which  is  a  nuisance,  will  not  justify  it  in  the 
destruction  of  a  building  which  is  not  a  nuisance  in  itself.84  So 
where  power  is  conferred  upon  a  municipality  to  remove  a  build- 
ing which  is  eminently  dangerous  to  life,  it  cannot,  in  an  action 
against  it  by  the  owner  of  a  building  which  has  been  destroyed, 
defeat  a  recovery  by  him  unless  it  appear  that  the  building  was 
eminently  dangerous  so  as  to  justify  the  exercise  of  the  power 
conferred.85  But  where  frame  buildings  were  condemned  as 
nuisances  by  a  board  of  inspection  it  was  held  that  the  city  was 
not  liable  for  the  torts  of  an  independent  board  which  was  a 
creature  of  the  statute  and  exercised  powers  derived  from  the 
State  and  not  from  the  city  and  was  constituted  to  perform  some 
public  service  from  which  the  municipality  derived  no  special  ad- 
vantage in  its  corporate  capacity.86  Again,  it  has  been  decided  that 


83.  McKibbin  v.  Fort  Smith,  35 
Ark.  352. 

84.  Bristol  Door  &  L.  Co.  v.  Bris- 
tol, 97  Va.  304,  33  S.  E.  588;  see 
§§   350-352,  herein. 

A  dwelling  house  cannot  be  made 
subject  to  removal  by  the  mere  de- 
claration of  the  municipal  authorities 
that  it  is  a  nuisance.  Teass  v.  St. 
Albans,  38  W.  Va.  1,  17  S.  E.  400,  19 
L.  R.  A.  802. 

85.  Hennessy  v.  St.  Paul,  37  Fed. 
565. 

86.  Murray  v.  Omaha,  66  Neb. 
279,  92  N.  W.  299,  13  Am.  Neg.  R. 
138.  in  which  case  the  court  said: 
"  We  are  of  opinion  that  the  city  was 
not  liable  for  the  manner  in  which 
the  board  for  the  inspection  of  build- 
ings exercised  its  office.  The  execu- 
tion of  laws  and  ordinances  as  to  the 


erection,  repair  and  removal  of  build- 
ings was  given  expressly,  not  to  the 
city,  but  to  this  board.  The  board 
was  not  under  the  control  of  the  city 
government,  but  exercised  its  own  dis- 
cretion. It  could  not  be  ordered  to 
condemn  or  remove  this  or  that  build- 
ing. All  the  city  could  do  was  to 
enact  ordinances  providing  general 
rules.  When  these  were  enacted, 
their  execution  and  application  was 
left  to  the  board.  The  city  did  not 
enforce  them.  As  the  board  was  the 
creacure  of  the  statute,  and  exercised 
powers  derived  from  the  State,  not 
from  the  city,  we  do  not  see  how  it 
can  be  said  to  represent  the  munici- 
pality so  as  to  make  the  latter  liable 
for  its  wrongful  acts.  The  individual 
members  are  the  persons  to  proceed 
against,  not  the  city.     As  a  general 


505 


§  350  Municipal  Powers  and  Liabilities. 

though  a  common  council  of  a  city  has  expressly  consented  by  per- 
mit to  the  erection  of  a  structure  and  a  person  has  expended  money 
in  reliance  upon  such  permit,  it  may  subsequently  abate  the  struc- 
ture as  a  nuisance.  In  this  case  it  was  said :  "  If  the  council  was 
wrong  in  the  course  it  pursued,  the  town  is  in  no  sense  liable. 
Even  after  the  works  were  fully  erected  and  in  operation,  the 
town  would  have  the  right  to  abate  them,  if  they  proved  to  be  a 
nuisance  to  the  public  or  individuals.  This  belongs  to  its  govern- 
mental and  public  powers.  Every  person  engaged  in  a  business 
that  may  become  a  nuisance  must  take  notice  of  the  law  in  this 
respect,  although  permitted  to  do  so  in  the  beginning  by  public 
authority.  This  is  a  risk  assumed  when  such  business  is  engaged 
in  by  such  person.  It  is  beyond  the  power  of  the  town  council  to 
contract  away  the  authority  to  prevent  or  abate  nuisances,  and  if 
they  should  do  so,  their  acts  are  ultra  vires  null  and  void,  and  the 
town  is  not  bound  thereby,  nor  made  liable  to  damages  by  reason 
of  a  breach  of  such  void  contract."  87 

§  350.  Same  subject — Where    nuisance    consists    in    use    of 
building  only. — A  municipality  in  the  exercise  of  its  powers  to 

rule,  a  municipal  corporation  is  not  for  the  interest  of  the  general  pub- 
liable  for  the  torts  of  an  independent  lie  and  might  equally  well  have  been 
board,  constituted  by  the  charter  or  left  to  a  board  appointed  by  the  state 
by  general  law  to  perform  some  pub-  government,  or  even  to  a  state  officer, 
lie  service  from  which  the  munici-  is  illustrated  by  other  provisions  in 
pality  derives  no  special  advantage  our  laws.  .  .  .  This  is  a  matter 
in  its  corporate  capacity,  even  of  general  public  concern  of  the  same 
though  the  duties  imposed  upon  such  nature  as  the  condemnation  and  re- 
board  might  have  been  imposed  upon  moval  of  dangerous,  decayed  and  in- 
the  municipality,  and  its  members  flammable  structures;  and  it  is  ob- 
are  appointed  by  the  municipal  gov-  vious  that  in  either  case  the  police 
ernment  under  the  provisions  of  the  power  of  the  State  is  exercised,  and 
charter  or  law.  1  Beach  on  Public  the  authority  which  the  State  seta 
Corporations,  §  740;  Williams  Mu-  up  to  wield  that  power  represents 
nicipal  Liability  for  Torts,  §§  16,  17;  the  sovereignty  of  the  State.  Such 
20  Am.  &  Eng.  Ency.  Law  (2nd  ed.),  has  been  the  general  course  of  decis- 
1203.  In  such  case  the  board  repre-  ions  with  respect  to  boards  so  con- 
sents the  State  and  exercises  its  sov-  stituted,"  per  Pound,  C. 
ereignty;  it  is  not  the  agent  of  the  87.  Wood  v.  City  of  Hinton,  47 
municipality.  That  the  duties  con-  W.  Va.  645,  35  S.  E.  824,  per  Dent,  J. 
tided  to  the  board   in  question  were 

506 


Municipal  Powers  and  Liabilities.  §  350 

remove  or  abate  nuisances  can  only  act  in  such  a  manner  as  will 
effectuate  the  purpose  for  which  the  powers  are  conferred.  It 
cannot  unwarrantably  invade  the  right  of  private  property.  If 
the  nuisance  consists  in  the  use  to  which  a  structure  is  put,  and  not 
in  the  structure  itself,  its  destruction  as  a  means  of  abating  the 
nuisance  will  not  be  justified,88  as  the  right  of  property  of  an  indi- 
vidual in  a  building  so  misused,  is  one  which  is  recognized  and  pro- 
tected by  the  constitution  and  laws.89  So  where  a  nuisance  con- 
sists in  the  uses  of  a  building  for  the  purpose  of  storing  rubbish, 
a  municipality  will  not  be  justified  in  ordering  the  destruction 
of  the  building.90  And  where  a  house  is  used  as  a  house  of  ill-fame, 
the  nuisance  consists  of  the  use  to  which  it  is  put,  and  a  municipal- 
ity in  the  exercise  of  its  power  to  remove  or  abate  nuisance  can- 
not destroy  the  house,  as  the  nuisance  can  be  abated  by  preventing 
the  use  for  such  purpose.91  And  where  a  proceeding  was  brougU 
under  the  consolidation  act  in  New  York92  for  the  purpose  of  con- 
demning certain  building  in  New  York  city,  it  was  alleged  substan- 
tially that  the  buildings  sought  to  be  condemned  were  in  such  a 
condition  as  to  be  dangerous  to  public  health,  and  that  they  were 
not  reasonably  capable  of  being  made  fit  for  human  habitation  and 
occupancy,  and  that  the  evils  caused  by  such  buildings  could  not 
be  remedied  in  any  other  way  than  by  their  destruction.  It  ap- 
peared that  these  buildings  were  five-story  tenement's,  constructed 
so  close  to  an  adjacent  building  owned  by  another  as  to  deprive 
both  buildings  of  proper  ventilation,  that  they  were  damp  and 
were  filled  with  filth  and  vermin,  that  foul  odors  came  therefrom 
which  were  almost  unendurable,  that  they  were  inhabited  by  over  a 
hundred  families,  that  the  air  in  the  rooms  was  foul  and  unfit  to 
breathe,  and  that  the  death  rate  was  about  twice  the  normal  rate 

88.  Nazeworthy  v.  Sullivan,  55  111.  89.  Miller  v.   Burch,   32   Tex.  209, 

App.  48 ;  Brightman  v.  Inhabitants  of  5  Am.  Bep.  242. 

Bristol,  G5  Me.  426.  20  Am.  Bep.  711;  90.  Allison   v.    Bichmond,   51    Mo. 

Allison    v.    Bichmond,    51    Mo.    App.  App.  133. 

133;    Barclay   v.    Commonwealth,   25  91.  Welch    v.     Stowell.    2     Dougl. 

Pa.  503,  64  Am.   Dec.  715;   Miller  v.  (Mich.)    332;   see  Ely  v.  Supervisors 

Burch,  32  Tex.  209,  5  Am.  Bep.  242.  of   Niagara    County,    36    N.    Y.    273; 

As    to    right    of    individual    in    such  Moody    v.     Supervisors    of     Niagara 

cases,  see  chap.  16,  subd.  2,  herein.  County,   46   Barb.    (N.  Y.)    659. 

92.  Laws  of  1882,  ch.  410. 

507 


§  350  Municipal  Powers  and  Liabilities. 

and  was  caused  by  diseases  nourished  by  dampness  and  exposure  to 
foul  air.  The  referee  found  that  they  were  unfit  for  habitation, 
but  the  appellate  court  declared  that  the  testimony  did  not  estab- 
lish that  they  were  not  capable  of  being  made  fit  for  habitation  or 
that  the  nuisance  upon  them  could  not  be  abated  in  any  other  way 
than  by  their  destruction.  It  was  said  in  this  case :  "  Although  the 
buildings  may  not  have  been  capable  of  being  fitted  for  habitation, 
still  if  they  were  so  put  in  repair  that  the  evil  smells  should  be 
removed  and  the  source  of  contagion  taken  away — as  it  is  plain 
from  the  evidence  might  be  done — the  building  would  cease  to  be 
a  nuisance,  and  the  fact  that  they  might  not  thereby  be  made  fit 
for  human  habitation  would  not  authorize  their  destruction.  If 
they  ceased  to  be  in  such  a  condition  as  to  breed  pestilence  and 
spread  disease,  and  were  rendered  innoxious,  the  owner  of  them 
had  a  right  to  have  them  remain  upon  the  premises,  even  though 
he  might  not  be  permitted  to  use  them  as  a  tenement  house.  There 
are  many  other  uses  to  which  he  might  lawfully  put  them,  and  the 
undoubted  power  of  the  public  to  refuse  him  permission  to  rent 
them  to  be  used  for  human  habitation  did  not  necessarily  involve 
the  right  to  destroy  them  if  they  were  not  fit  for  that  purpose.  .  . 
The  case,  then,  so  far  as  the  plaintiff  is  concerned,  must  stand  upon 
the  condition  of  these  buildings  themselves,  and  upon  the  fact  that 
they  were  not  capable  of  being  put  in  such  a  condition  that  they 
would  not  be  of  themselves  dangerous  to  public  health.  Unless  that 
was  made  to  appear,  the  right  to  destroy  them  did  not  exist  In 
such  cases  the  right  to  condemn  grows  out  of  the  right  to  destroy 
the  building  because  it  is  a  public  nuisance  and  can  be  abated 
in  no  other  way;  and  unless  that  is  made  to  appear,  there  can  be 
no  final  order  for  condemnation."  93  Again,  where  an  action  was 
brought  under  a  statute  to  recover  damages  from  a  town  for  the 
destruction  of  a  building  by  a  mob,  it  was  decided  that  evidence 
was  not  admissible  to  show  that  the  business  carried  on  in  such 
building  was  a  public  nuisance  on  account  of  the  noisome  smells 
therefrom.94     Where,  however,  officers  of  a  municipality  act  out- 

93.  Health  Department  of  City  of  94.  Brightman   v.    Inhabitants    of 

New  York  v.  Dassori,  21  App.   Div.       Bristol,  65  Me.  426,  20  Am.  Rep.  711. 

(N.  Y.)    348,   355,   47    N.  Y.    Suppl. 
641,  per  Rumsey,  J. 

508 


Municipal  Powers  and  Liabilities.     §§  351,  352 

side  the  scope  of  their  powers  in  the  destruction  of  a  building,  it 
has-been  decided  that  they  will  not  be  liable  in  their  corporate 
capacity  for  such  act,95  But  it  has  been  decided  that  a  burgess 
may  be  personally  liable  for  the  destruction  of  a  building  as  a 
nuisance  when  it  was  not  one  in  fact.96  And  it  has  also  been 
decided  that  the  mayor  of  a  city  may  be  liable.97 

§  351.  Same  subject — Right  of  owner  of  building  to  injunc- 
tion.— Though  a  municipality  may  have  the  power  to  destroy  a 
building  where  it  is  a  nuisance  in  itself  yet  it  may  be  enjoined  in 
an  action  by  the  owner  of  a  building  where  the  nuisance  consists 
in  the  use  of  the  building  merely,  from  unlawfully  destroying  such 
building.  As  has  been  said  in  one  case:  "It  would  require  a 
great  stretch  of  judicial  power  for  a  court  of  equity  to  sanction 
the  abatement  of  a  building  as  a  nuisance,  when  the  building  itself 
does  not,  but  only  its  use,  constitute  the  nuisance.  The  law  will 
only  permit  the  abatement  of  so  much  of  a  nuisance  as  is  neces- 
sary to  prevent  the  injury.  It  is  only  necessary  to  be  rid  of  the 
persons  who  use  the  buildings  for  an  unlawful  or  improper  pur- 
pose, and  the  law  affords  ample  remedies,  by  indictment  and 
otherwise,  to  accomplish  this  purpose."  98 

§  352.  Property  destroyed  as  a  nuisance — Owner  no  right  to 
compensation. — Where  a  municipality  in  the  exercise  of  power 
possessed  by  it  to  abate  a  nuisance  which  endangers  the  public 
health  or  safety,  rightfully  destroys  property  which  is  a  nuisance 

95.  Prichard  v.   Commissioners  of  ture  or  other  articles  for  the  preven- 

Morganton,   126  N.  C.  908,  36  S.  E.  tion  of  the  spread  of  contagious  dis- 

353     (holding    that    county    commis-  eases  and  that  they  were  not  liable  in 

sioners    authorized    by    the   code     to  their  corporate  capacity  in  an  action 

make  rules,  regulations,  and  by-laws  therefor  unless  they  had  acted  negli- 

for  the  prevention  of  the   spread  of  gently    in   the    performance   of    their 

contagious  diseases  had  no   power  to  authorized  duties, 

burn    a   dwelling   house    in   order    to  96.  Reed  v.  Seely,   13  Pa.   Co.  Ct. 

prevent  the  spread  of  smallpox,   and  529. 

that    they    were   not   liable   in   their  97.  Fields  v.    Stokley,  99   Pa.    St. 

corporate  capacity  in  an  action  there-  306,  44  Am.  Rep.  109. 

for.     It  was   also   held  in   this  case  98.  Bristol  Door  &  L.  Co.  v.  Bris- 

that  such  power  was  not  conferred  by  tol,   97   Va.   304,  308,  33  S.  E.   588, 

authority    to    destroy  tainted  furni-  per  Harrison,  J. 

509 


§  353  Municipal  Powers  and  Liabilities. 

of  this  character,  the  owner  thereof  will  not  be  entitled  to  com- 
pensation for  the  property  so  destroyed."  The  constitutional  pro- 
vision requiring  compensation  to  be  made  for  property  taken  or 
damaged  for  public  purposes  does  not  apply  to  property  lightly 
condemned  and  destroyed  as  a  public  nuisance  because  dangerous 
to  health.100  "  Such  destruction  for  the  public  safety  or  health,  is 
not  a  taking  of  private  property  for  public  use,  without  compen- 
sation or  due  process  of  law,  in  the  sense  of  the  constitution.  It 
is  simply  the  prevention  of  its  noxious  and  unlawful  use,  and  de- 
pends upon  the  principles  that  every  man  must  so  use  his  property 
as  not  to  injure  his  neighbor,  and  that  the  safety  of  the  public  is 
the  paramount  law.  These  principles  are  legal  maxims  or  axioms 
essential  to  the  existence  of  regulated  society.  Written  constitu- 
tions presuppose  them,  are  subordinate  to  them,  and  cannot  set 
them  aside.  They  underlie  and  justify  what  is  termed  the  police 
power  of  the  State."  m 

353.  Municipal  liability  for  nuisance — Generally. — A  munici- 
pal corporation  is  subject  to  liability  like  an  individual  for  a  nui- 
sance which  it  maintains  or  permits  to  be  maintained  upon  prop- 
erty owned  by  it  or  under  its  control.  It  may  in  a  particular  case  be 
relieved  from  liability  as  for  a  nuisance  where  it  acts  under  ex- 
press legislative  authority  in  the  doing  of  an  act  and  strictly 
within  the  scope  of  the  powers  granted.  Such  authority,  however, 
will  not  relieve  a  municipality  from  liability  for  a  nuisance  cre- 
ated by  it  in  the  careless,  negligent,  or  improper  exercise  of  the 
powers  conferred.102     So  it  has  been  decided  that  a  municipality 

99.  Savannah  v.  Mulligan,  95  Ga.  could  not  be  used  consistently  with 
323,  22  S.  E.  621,  29  L.  R.  A.  303,  the  maxim  sic  utere  tuo  ut  alienum 
51  Am.  St.  R.  86;  Theilan  v.  Porter,  non  laedas.  In  abating  nuisances  the 
14  Lea  (Tenn.),  622,  52  Am.  Rep.  public  does  not  exercise  the  power  of 
173.  eminent     domain,     but     the     police 

100.  Dunbar   v.    Augusta,    90    Ga.       poyer,"  per  Bleckley,  C.  J. 

390,   17    S.   E.   907,   44   Am.  &   Eng.  101..  Manhattan  Mfg.  &  F.  Co.  v. 

Corp.  Cas.  558.   The  court  said:    "To  Van  Keuren,  23  N.  J.  Eq.  251,  255, 

destroy  property  because  it  is  a  dan-  per  the  Vice  Chancellor, 

gerous   nuisance   is   not    to   appropri-  102.  City  of  Morrison  v.  Hinkson, 

ate  it  to  a  public  use,  but  to  prevent  87    111.   587,   29   Am.   Rep.    77 ;    New 

any  use  of  it  by  the  owner  and  put  Albany   v.   Slider,  21   Ind.   App.   392, 

an    end    to   its    existence   because    it  52  N.  E.  626;  Thayer  v.  City  of  Bos- 

510 


Municipal  Powers  and  Liabilities. 


§353 


will  be  liable  for  a  nuisance  consisting  of  the  deposit  of  garbage 
and  refuse  matter  near  the  residence  of  a  person  thereby  causing 
him  personal  discomfort  and  expense.103  And  it  has  been  de- 
clared that  when  the  city,  without  the  pretense  of  authority,  and  in 
direct  violation  of  a  statute,  assumes  to  grant  to  a  private  indi- 
vidual the  right  to  obstruct  the  public  highway  while  in  the  trans- 
action of  his  private  business,  and  for  sucli  privilege  takes  com- 
pensation, it  must  be  regarded  as  itself  maintaining  a  nuisance 
as  long  as  the  obstruction  is  continued  by  reason  of  and  under  such 
license  and  it  must  be  liable  for  all  damages  which  may  naturally 
result  to  a  third  party  who  is  injured  in  his  person  or  his  prop- 
erty by  reason  or  in  consequence  of  the  place  of  such  obstruction 
in  the  highway.104  So  where  a  permit  was  granted  by  a  city  to 
individuals  to  use  a  street  for  a  display  of  fireworks,  thus  creatine 
a  nuisance  in  the  highway,  it  was  decided  that  the  city  was  liable 
for  an  injury  to  property  caused  by  such  display.105  Again,  where  a 


ton,  19  Pick.  (Mass.)  511,  31  Am. 
Dec.  157 ;  Baker  v.  City  of  Boston,  12 
Pick.  (Mass.)  184,  22  Am.  Dec.  421; 
Hart  v.  Union  City,  57  N.  J.  L.  99, 
29  Atl.  490;  Brower  v.  City  of  New 
York,  3  Barb.  (N.  Y.)  254;  People 
v.  Corporation  of  Albany,  11  Wend. 
(N.  Y.)  539,  27  Am.  Dec.  95;  Belton 
v.  Baylor  Female  College  (Tex.  Civ. 
A.),  33  S.  W.  680;  Hughes  v.  Fond 
du  Lac,  73  Wis.  380,  41  N.  W.  407; 
see  Mayor  of  Savannah  v.  Cullens,  38 
Ga.  334,  95  Am.  Dec.  398. 

"  Municipal  corporations  are  liable 
for  the  improper  management  and 
use  of  their  property  to  the  same  ex- 
tent and  in  the  same  manner  as  pri- 
vate corporations  and  natural  per- 
sons. Unless  acting  under  valid  special 
legislative  authority,  they  must,  like 
individuals,  use  their  own  so  as  not 
to  injure  that  which  belongs  to  an- 
other." 2  Dillon  on  Mun.  Corp.  (3rd 
ed.)  §  985. 

"  It  is  well  settled  that  a  munici- 
pal corporation  is  liable  for  the  dam- 


ages sustained  by  a  citizen  in  conse- 
quence of  such  corporation  permit- 
ting such  ground  under  its  control  to 
become  a  nuisance."  City  of  Sher- 
man v.  Laugham  (Tex.,  1890),  13  S. 
W.  1042. 

A  petition  should  allege,  in  an 
action  against  a  city  to  enjoin  the 
maintenance  of  an  alleged  nuisance, 
which  is  not  a  nuisance  per  se,  such 
facts  as  show  with  reasonable  cen- 
tainty  that  a  nuisance  will  be 
brought  into  existence  and  that  the 
petition  will  suffer  injury  unless  the 
prayer  for  relief  is  granted.  Dunn 
v.  City  of  Austin,  77  Tex.  139,  11  S. 
W.   1125. 

103.  City  of  Sheppenville  v. 
Bower  (Tex.  Civ.  App.).  68  S.  W. 
833. 

104.  Cohen  v.  New  York,  113  N. 
Y.  532,  21  N.  E.  700,  10  Am.  St.  R. 
506,  per  Beckham,  J.  As  to  mu- 
nicipal liability  for  nuisance  in  high- 
way, see  §  264,  herein. 

105.  Speir  v.  Brooklyn,  139  N.  Y. 


511 


§353 


Municipal  Powers  and  Liabilities. 


nuisance  was  caused  by  the  refuse  dumped  into  the  manhole  of  a 
sewer  by  persons  whom  the  city  had  licensed  to  do  such  act  it  was 
decided  the  city  could  not  escape  liability  therefor,  as  if  it  licensed 
its  property  to  be  used  for  the  purpose  indicated,  that  is,  for  the 
dumping  of  night  soil  into  it,  it  must  see  to  it  that  those  who  use 
it  take  such  precautions  that  the  use  will  not  be  made  a  nuisance.10' 
And  the  fact  that  a  municipality  may  be  liable  to  indictment  for 


6,  34  N.  E.  727,  54  N.  Y.  St.  R.  416, 
21  L.  R.  A.  641,  36  Am.  St.  R.  664,  44 
Am.  &  Eng.  Corp.  Cas.  577. 

The  court  said  in  this  case:  "The 
display  was  of  considerable  magni- 
tude, and  the  explosives,  especially 
the  rockets,  were  heavily  charged, 
and  when  exploded  were  carried  with 
immense  velocity.  It  was  managed 
by  private  persons  under  no  official 
responsibility  and  no  municipal  or 
public  interest  was  concerned.  Un- 
der the  circumstances,  in  view  of  the 
place,  the  danger  involved  and  the 
occasion,  the  transaction  was  an  un- 
reasonable, unwarranted,  and  unlaw- 
ful use  of  the  streets,  exposing  per- 
sons and  property  to  injury,  and  was 
properly  found  to  constitute  a  public 
nuisance.  The  court  below  adjudges 
that  the  City  of  Brooklyn  is  liable 
for  the  injury  sustained  by  the 
plaintiff,  and  this  is  the  only  question 
in  the  case.  That  a  municipal  cor- 
poration may  commit  an  actionable 
wrong  and  become  liable  for  a  tort  is 
now  beyond  dispute.  If  the  city 
directed  or  authorized  the  discharge 
of  the  fireworks  which  resulted  in 
the  injury  complained  of,  it  is,  we 
think,  liable.  The  inquiry  is  whether 
the  City  of  Brooklyn  did  anything 
which,  as  to  this  plaintiff,  placed  it 
in  the  attitude  of  a  principal  in  car- 
rying on  the  display.  The  mayor  of 
the   city,   its    chief   executive   officer, 


expressly  authorized  it,  assuming  to 
act  under  an  ordinance  of  the  Com- 
mon Council.  In  so  doing  and  in 
construing  the  ordinance  as  author- 
izing him  to  grant  a  permit  to  private 
persons  to  use  the  public  streets  for 
the  discharge  of  fireworks,  he  was 
following  the  practice  which  had  long 
prevailed,  and  so  far  as  appears  no 
question  had  been  raised  that  such 
permits  were  not  within  the  ordi- 
nance. .  .  .  The  city  had  power 
to  prohibit  or  regulate  the  use  of 
fireworks  within  the  city  and  to  en- 
act ordinances  upon  the  subject. 
.  .  .  If  the  permit  was,  in  fact, 
authorized  by  the  ordinance  the  city 
would,  .as  we  conceive,  be  liable, 
although  the  particular  act  author- 
ized was  wrongful.  .  .  .  But  if 
the  ordinance  transcended  the  power 
of  the  Common  Council  in  thi3  re- 
spect, the  misconstruction  of  the 
Common  Council  of  the  extent  of  its 
powers  in  dealing  with  the  subject, 
which  was  concededly  within  its 
power  of  regulation,  does  not,  we 
think,  within  any  just  view  of  mu- 
nicipal exemption  from  the  conse- 
quences of  unauthorized  and  wrong- 
ful acts  of  the  governing  body,  exempt 
the  city  from  liability."  Per  An- 
drew, C.  J. 

106.   Kolb  v.  Mayor  of  Knoxville, 
(Tenn.  S.  C.  1903),  76  S.  W.  823. 


512 


Municipal  Powers  and  Liabilities.  §  35-1 

maintaining  a  nuisance  will  not  affect  its  liability  to   an  indi- 
vidual who  has  sustained  a  special  injury  thereby.107 

§  354.  Same  subject — Distinction  between  powers  ministerial 
and  legislative. — In  determining  the  question  of  the  liability  of  a 
municipal  corporation,  a  distinction  is  made  between  those  cases 
where  it  acts  in  the  exercise  of  its  governmental  or  legislative 
powers  and  those  where  it  acts  in  the  exercise  of  its  private  or  min- 
isterial powers.  This  distinction  is  well  stated  in  a  recent  case 
in  Virginia,  where  it  is  said :  "  A  municipal  corporation  has  a 
dual  character,  the  one  public  and  the  other  private,  and  exercises 
correspondingly  two-fold  functions,  the  one  governmental  and  leg- 
islative and  the  other  private  and  ministerial.  In  its  public  char- 
acter it  acts  as  an  agency  of  the  State,  to  enable  it  the  better  to 
govern  that  portion  of  the  people  residing  within  the  munici- 
pality ;  and  to  this  end  there  is  granted  to  or  imposed  upon  it,  by 
the  charter  of  its  creation,  powers  and  duties  to  be  exercised  and 
performed  exclusively  for  public  governmental  purposes.  These 
powers  are  legislative  and  discretionary  and  the  municipality  is 
exempt  from  liability  for  an  injury  resulting  from  the  failure  to 
exercise  them,  or  from  their  improper  or  negligent  exercise.  In 
its  corporate  or  private  character  there  are  granted  unto  it  privi- 
leges and  powers  to  be  exercised  for  its  own  private  advantage, 
which  are  for  public  purposes  in  no  other  sense,  than  that  the 
public  derives  a  common  benefit  from  the  proper  discharge  of  the 
duties  imposed  or  assumed  in  consideration  of  the  privileges  and 
powers  conferred.  This  latter  class  of  powers  and  duties  are  not 
discretionary,  but  ministerial  and  absolute;  and  for  an  injury 
resulting  from  negligence  in  their  exercise  or  performance,  the 
municipality  is  liable  in  a  civil  action  for  damages',  in  the  same 

107.     Hart  v.  Union  City,  57  N.  J.  why  municipal  corporations  should  be 

L.  90,  29  Atl.  490,  wherein  it  was  said  shielded  from  liability  when  a  private 

by  the  court:     "This  contention  can-  injury  is   inflicted  by  their  wrongful 

not     prevail.       We     have    not     been  acts,  as  distinguished  from  mere  neg- 

pointed   to   any    precedent   extending  ligence.     The  grounds  on   which   the 

exemption   from  liability  to  cases   of  exemption  has  been  rested  in  the  one 

active  wrongdoing,  nor  are  such  prec-  class  of  cases  are  inapplicable  to  the 

edents  to  be  discovered.     There  is  no  other  class."    Per  Magie,  J. 
reason   arising   out   of   public   policy 

513 


§354 


Municipal  Powers  and  Liabilities. 


manner  as  an  individual  or  private  corporation.  The  line  of  dis- 
tinction between  the  two  classes  of  powers  and  duties  is  clearly 
drawn  by  the  courts  and  text  writers,  and  the  exemption  of  the 
municipality  in  the  one  case  and  its  liability  in  the  other  for  an 
injury  resulting  from  negligence,  firmly  established."  108  So  it 
has  been  declared  that  a  municipal  corporation  which  i&  author- 
ized to  make  ordinances  for  the  good  government  of  its  streets  and 
citizens,  and  which  passes  such  ordinances,  is  not  liable  for  inju- 
ries resulting  from  their  neglect  or  violation  by  private  citizens  or 
for  its  failure  to  strictly  enforce  them,  as  in  such  cases  it  acts  in  a 
legislative  capacity.109  And  likewise  the  fact  that  a  city,  having 
power  to  enact  ordinances  to  prevent  a  nuisance,  fails  to  enact  them 
will  not  render  it  liable  in  a  suit  at  law.110  It  is,  however,  often 
a  difficult  question  to  determine,  upon  the  particular  facts  of  the 


108.  Jones  v.  City  of  Williams- 
burg, 97  Va.  722,  723,  34  S.  E.  883, 
47  L.  R.  A.  294  per  Riley,  J.,  citing  2 
Dillon  on  Mun.  Corp.  (4th  ed.)  sees. 
949,  966;  City  of  Richmond  v.  Long, 
17  Grat.  (Va.)  375;  Sawyer  v.  Corse, 
17  Grat.  (Va.)  230;  Perry  v.  Rich- 
mond, 94  Va.  538. 

"  A  recovery  can  be  had  against  a 
municipal  corporation  only  where  it 
negligently  performs  or  negligently 
fails  to  perform  a  duty  in  its  nature 
ministerial  and  then  only  in  cases 
where  the  ministerial  duty  is  imposed 
by  law."  Anderson  v.  East,  117  Ind. 
126,  19  N.  E.  726,  2,  L.  R.  A.  712  per 
Elliott,  C.  J. 

Where  duties  are  imposed  on  a 
municipality  it  must  perform  them 
and  in  an  action  for  failure  to  per- 
form them  and  thereby  prevent  a 
nuisance  causing  injury  to  the 
plaintiff,  a  failure  to  use  the  means 
at  its  disposal  to  prevent  such  con- 
sequences should  be  alleged.  Thread- 
gill  v.  Anson  Co.  Com'rs,  99  N.  C. 
352,  6  S.  E.  189. 

109.  Leonard  v.  City  of  Hornells- 


ville,  41  App.  Div.  (N.  Y.)  106,  58  N. 
Y.  Suppl.  266;  Levy  v.  Mayor  1 
Sandf.  (N.  Y.)  465.  See,  also,  How- 
ard v.  City  of  Brooklyn,  30  App.  Div. 
(N.  Y.)  217,  51  N.  Y.  Suppl.  1058; 
Hubbell  v.  City  of  Veroqua,  67  Wis. 
343,  30  N.  W.  847. 

110.  "The  act  sued  for  is  a 
nuisance  under  the  facts  stated.  But 
not  being  the  act  of  the  city,  it  is  the 
act  of  those  who  actually  set  up  and 
maintained  the  pesthouse.  It  was 
thus  a  private  nuisance,  of  the  same 
legal  character  that  the  establishment 
of  a  slaughter  house  by  individuals 
might  be.  It  is  admittedly  true  that 
the  city  could,  by  ordinance  and  pros- 
ecution, so  punish  perpetrators  of 
nuisances  within  its  jurisdiction  as  to 
prevent  them.  For  a  failure  to  enact 
and  execute  such  ordinances  will  the 
city  be  liable?  We  are  of  the  opinion 
that  it  will  not.  It  would  be  a  fail- 
ure to  discharge  its  political  duties 
for  which  it  is  not  liable  to  a  suit  at 
law."  Arnold  v.  City  of  Stanford,  24 
Ky.  Law  R.  626,  69  S.  W.  726,  per 
Judge  O'Rear. 


514 


Municipal  Powers  and  Liabilities.  §  355 

case,  to  which  class  a  certain  power  belongs  and  therefore  to  de- 
cide whether  a  municipality,  in  a  particular  case,  is  liable  or  not.111 

§  355.  Municipal  liability — Public  works — Particular  in- 
stances.— Though  a  municipality  is  engaged  in  the  construction 
or  maintenance  of  a  work  which  is  for  the  public  benefit,  use  or 
advantage,  such  fact  will  not  relieve  it  from  liability  for  a  nui- 
sance caused  by  the  mode  or  manner  of  its  construction  or  main- 
tenance. A  municipality  in  pursuing  a  public  work,  is  not  priv- 
ileged to  commit  a  nuisance  to  the  special  injury  of  a  citizen,  and 
if  it  does,  it  must,  as  would  a  private  individual,  respond  in  dam- 
ages therefor.112  So  the  fact  that  a  wall  built  by  a  city,  was  main- 
tained solely  for  public  use,  was  held  not  to  relieve  the  city  from 
liability  for  a  nuisance  caused  to  an  adjoining  owner  upon  whose 
land  it  encroached.113  So  it  has  been  declared  that  while  the  dis- 
cretion of  a  county  in  the  exercise  of  a  governmental  power  such 
as  the  location  and  construction  of  a  sewer  can  not  be  controlled 
by  the  courts  unless  a  clear  abuse  of  power  is  shown,  yet  such  ex- 
emption can  not  be  invoked  to  protect  it  in  the  exercise  of  its 
powers  in  such  a  manner  as  to  commit  a  nuisance  to  the  injury  of 
individuals.114  And  though  the  maintenance  in  a  proper  manner 
by  a  municipality  of  a  dump  for  garbage  and  refuse  matter  is  an 
exercise  of  a  proper  municipal  function  and  not  a  nuisance,  yet  if 
it  is  maintained  in  an  improper  manner  so  as  to  create  a  nuisance 
and  cause  injury  to  an  individual  the  city  will  be  liable  therefor.115 

111.  Mayor  of  Dalton  v.  Wilson,  Waycross  v.  Houk,  113  Ga.  963,  39  S. 
118  Ga.  100,  44  S.  E.  830,  98  Am.  St.      E.  577. 

R-  101-  115.   City  of  Denver  v.  Porter,  126 

112.  Chattanooga  v.  Dowling,  101       Fed.  288,  61  C.  C.  A.  168. 

Tenn.  342,  47  S.  W.  700.  Coining  to  nuisance.     The  fact 

113.  Miles  v.  Worcester,  154  Mass  that  the  city  purchased  the  land  and 
511,  28  N.  E.  676,  13  L.  R.  A.  841,  designated  it  as  a  place  for  dumping 
26,  Am.  St.  R.  264,  in  which  it  was  refuse  matter  before  the  plaintiff 
declared  that  public  use  did  not  jus-  located  in  its  vicinity  will  not  relieve 
tify  the  nuisance,  and  that  if  more  the  city  from  liability  to  him  for  an 
land  were  needed  it  should  be  taken  injury  sustained  by  him  owing  to  the 
in  the  regular  way  and  compensation  negligent  manner  in  which  it  was 
8iven-  conducted.        Sherman    v.    Langham, 

114.  Pierce  v.  Gilson  County,  107  (Tex.),  13  S.  W.  1042,  30  Am.  &  Eng. 
Tenn.  224,  64  S.  W.  33;  see  City  of  Corp.  Cas.  539. 

515 


§  356  Municipal  Powers  and  Liabilities. 

And  it  has  been  decided  that  it  is  the  undoubted  right  of  a  mu- 
nicipal corporation  to  grade  its  streets  or  change  the  grade  when  it 
deems  it  necessary  so  to  do,  and  the  property  owners  have  no 
ground  of  complaint  even  though  the  consequences  be  that  surface 
water  is  thrown  upon  the  land,  or  caused  to  flow  thereon  in  larger 
quantity  than  formerly,  or  is  prevented  from  flowing  therefrom 
or  is  collected  thereon.  But  no  right  exists  to  collect  a  material 
body  of  water  by  diverting  it  from  its  natural  flow,  or  by  other 
means  to  gather  it  together,  and  when  thus  collected  to  conduct  it 
by  any  artificial  channel  and  discharge  it  in  a  body  upon  private 
property.116 

§  356.  Same  subject  continued. — Legislative  authority  to  a 
municipaliy  to  build  a  pumping  station  for  its  waterworks,  but 
which  does  not  designate  the  site,  does  not  authorize  its  location 
so  near  to  the  premises  of  an  individual  as  to  render  buildings 
subsequently  erected  thereon  untenantable  on  account  ^f  the  noise 
and  vibration.  The  legislature  will  not  in  such,  a  case  be  presumed 
to  have  authorized  an  invasion  of  private  rights  amounting  to  a 
nuisance.117     And  likewise  a  municipality  may  be  held  responsible 

Possession  and  control  suffici-  vidual  of  his  half  of  the  pier  or  to 
ent  to  render  a  city  liable  for  a  create  a  nuisance  by  dumping  gar- 
nuisance  is  shown  by  the  fact  bage  on  the  dumping  board.  Hill  v. 
that  the  place  was  designated  by  ordi-  New  York,  139  N.  Y.  495,  34  N.  E. 
nance  to  be  used  for  such  purpose.  1090,  54  N.  Y.  St.  R.  797. 
that  the  land  was  taken  possession  of  116.  Carll  v.  Northport,  11  App. 
by  the  city,  and  that  by  ordinance  the  Div.  (N.  Y.)  120,  42  N.  Y.  Suppl. 
use  of  the  land  by  others  was  prohib-  576.  See,  also,  Lynch  v.  Mayor,  76 
ited  and  the  city  scavenger  directed  N.  Y  62;  McCarthy  v.  Far  Rockaway, 
to  deposit  garbage  thereon.  Fort  3  App.  Div.  (N.  Y.)  381.  See,  Corn- 
Worth  v.  Crawford,  74  Tex.  404,  12  missioners  of  Kensington  v.  Wood,  10 
S.  W.  52,  15  Am.  St.  R.  840.  Pa.  St.  93,  49  Am.  Dec.  582  holding 

The  New  York  City  Consolida-  that  the  commissioners   of  a  district 

tion    Act,    sec.    706,    by   which   the  who  are  authorized  to  grade  and  pave 

street  commissioner  was  authorized  to  a  public  street,   are  liable   for   inju- 

.  use    city    piers   for    the    shipment   of  ries   accruing  to   a    private    right   of 

garbage  and  refuse  did  not  authorize  way  down  which  the  water  from  the 

the  construction  by  the  city  on  a  pub-  street    is    thereby    diverted,    as    they 

lie  pier  owned  by  it  and  an  individ-  are  bound  to  make  proper  provisions 

ual  in  severalty  of  a  dumping  board  for  carrying  off  the  waste  water, 

so  as  to  impair  the  use  by  the  indi-  117.    Morton  v.  New  York,  140  N. 

516 


Municipal  Powers  and  Liabilities. 


356 


where  a  hospital  is  wrongfully  located  or  conducted  by  it  or  is 
operated  in  an  unwarranted  manner  or  without  due  care  and 
skill.118  So,  again,  where  a  nuisance  was  caused  by  the  defective 
construction  of  a  privy  vault  of  a  school  house  which  belonged  to 
a  city  it  was  held  that  the  city  was  liable  in  damages  for  such 
nuisance.119  But  where  the  municipality  is  not  the  erector  or 
custodian  of  public  school  buildings  within  its  limits  and  has  no 
control  over  such  buildings  or  the  land  on  which  they  are  erected 
it  has  been  decided  that  it  is  not  liable  as  the  creator  or  continuer 
of  a  nuisance  resulting  from  defects  in  such  a  building.120 

§  357.  Liability  of  municipality  where  it  fails  to  remove  or 
abate  nuisance. — Where  the  duty  is  imposed  upon  a  municipality 
of  removing  or  abating  nuisances  which  are  public  in  their  charac- 


Y.  207,  35  N.  E.  490,  55  N.  Y.  St.  R. 
413,  22  L.  R.  A.  241,  44  Am.  &  Eng. 
Corp.  Cas.  568,  affirming  65  Hun.  (N. 
Y.)  32,  19  N.  Y.,  Suppl.  603,  47  N.  Y. 
St.  R.  64.  See  Chap.  VI.  herein  as  to 
legalized  nuisances. 

118.  Deaconess  Home  &  Hospital 
v.  Bontjes,  104  111.  App.  484.  See 
Frazer  v.  City  of  Chicago,  186  111.  480, 
57  N.  E.  1055. 

A  county  erecting  and  main- 
taining a  pesthouse  for  the  treat- 
ment of  persons  infected  with  malig- 
nant disease  is  liable  to  an  individual, 
where  the  pesthouse  is  located  so  near 
to  his  dwelling  that  his  premises  be- 
come unhealthy  and  infected  with  the 
same  disease  and  the  occupancy 
thereof  is  rendered  unpleasant  and 
unsafe.  Haag  v.  Board  of  Commis- 
sioners of  Vanderburgh  County,  60 
Ind.  511,  28  Am.  Rep.  654. 

119.  Briegel  v.  Philadelphia,  135 
Pa.  St.  451,  19,  Atl.  1038,  20  Am.  St. 
R.  885,  28  W.  N.  C.  253,  30  Am.  k 
Eng.  Corp.  Cas.  501.  Mr.  Justice 
Mitchell  said  in  this  case:  "In  the 
class  of  cases  to  which  the  present  be- 


longs, injuries  arising  from  the  mis- 
use of  land,  there  has  never  been  any 
substantial  hesitation  in  holding  cities 
liable.  The  ownership  of  property  en- 
tails certain  burdens,  one  of  which  is 
the  obligation  of  care  that  it  shall  not 
injure  others  in  their  property  or  per- 
sons, by  unlawful  use  or  neglect. 
This  obligation  rests,  without  regard 
to  personal  disabilities,  on  all  owners 
alike,  infants,  femes  coverts,  and 
others,  by  virtue  of  their  ownership, 
and  municipal  corporations  are  not 
exempt.  The  general  rule  is  thus 
stated:  'Municipal  corporations  are 
liable  for  the  improper  management 
and  use  of  their  property,  to  the  same 
extent  and  in  the  same  manner  as  pri- 
vate corporations  and  natural  per- 
sons. Unless  acting  under  valid  spe- 
cial legislative  authority,  they  must, 
like  individuals,  use  their  own  so  as 
not  to  injure  that  which  belongs  to 
another.'  2  Dillon  Mun.  Corp.  3rd  ed. 
sec.  985." 

120.     Perry   v.   .Mayor   of   City   of 
New  York,  8  Bosw.   (X.  Y.)  504. 


>17 


§  358  Municipal  Powers  and  Liabilities. 

ter  and  it  fails  to  perform  such  duty,  it  will  be  liable  in  damages 
to  one  who  is  injured  in  consequence  of  such  failure.121  So  it  has 
been  decided  that  power  conferred  on  a.  city  by  its  charter  to  re- 
move, or  cause  to  be  removed,  any  buildings,  posts,  steps,  fences 
or  other  obstructions,  or  nuisance,  in  the  public  streets,  lanes, 
alleys,  sidewalks  or  public  squares  of  the  city,  is  a  power  conferred 
for  the  public  good  and  that  the  municipality  is  bound  to  keep  the 
streets,  lanes,  alleys  and  sidewalks  in  such  condition  that  it  is  safe 
and  convenient  to  pass  over  and  along  them,  and  that  in  case  of 
failure  it  is  liable  to  the  one  injured  by  its  neglect.  In  this  case 
it  was  decided  that  a  two  story  brick  wall,  of  a  building  burned 
down  some  time  previous,  standing  immediately  upon  the  edge 
of  the  sidewalks,  and  which  was  insecure  and  endangered  the  lives 
of  people  passing  was  a  nuisance  which  it  was  the  duty  of  the 
municipality  to  abate,  and  having  failed  to  do  so  it  was  liable  in 
damages  to  one  injured  by  its  falling.122 

§  358.  Same  subject  continued. — The  failure,  however,  of  a 
municipal  corporation  to  provide  the  means  of  abating  a  nuisance 
upon  private  property  not  affecting  a  street  or  highway  or  the 
omission  to  abate  it  when  the  means  are  furnished  gives  no  right 
of  action  to  one  who  may  be  injured  thereby.123     And  the  rule  is 

121.  Baker  v.  City  of  Boston,  12  and  secure,  at  once  arises,  and  this 
Pick.  (Mass.)  184,  22  Am.  Dec.  421;  duty  cannot  be  shifted  from  the  city 
Raymond  v.  City  of  Lowell,  6  Cush.  to  another  so  as  to  relieve  it  from 
(Mass.)  524,  53  Am.  Dec.  57;  People  liability  for  injuries  occasioned  by  it." 
v.  Corporation  of  Albany,  11  Wend.  Per  Morton,  J.  Compare  Davis  v. 
(X.  Y.)  539,  27  Am.  Dec.  95;  Fort  Montgomery,  51  Ala.  139,  23  Am. 
Worth  v.  Crawford,  74  Tex.  404,  12  S.  Rep.  545. 

W.  52.  123.   Davis  v.  Montgomery,  51  Ala. 

122.  Parker  v.  Mayor  of  Macon,  39  139,  23  Am.  Rep.  545;  James  v.  Har- 
Ga.  725,  99  Am.  Dec.  486.  See,  also.  rodsburg,  85  Ky.  191,  3  S.  W.  135,  7 
Orogan  v.  Broadway  Foundry  Co.,  87  Am.  St.  R.  589;  City  of  Frankfort  v. 
Mo.  321,  in  which  the  court  says  in  a  Commonwealth,  25  Ky.,  Law  Rep.  311, 
similar  case  that  "whenever  it  is  dis-  75  S.  W.  217;  Leonard  v.  Hornells- 
lovered  by  the  officers  of  the  city  that  ville,  41  App.  Div.  106,  58  N.  Y. 
a  structure  exists  in  the  sides  of  one  Suppl.  266.  See,  also,  Anderson  v. 
of  its  streets,  so  unsafe  as  to  endanger  East.  117  Ind.  126,  19  N.  E.  726,  2  L. 
the  lives  or  persons  of  those  passing  R.  A.,  712;  Home  v.  City  of  New  Or- 
over  and  along  the  street,  the  duty  leans,  12  La.  Ann.  481;  McSrowell  v. 
either  to  remove  it  or  to  make  it  safe  Town  of  Bristol,  5  Lea  (Tenn. )  685. 

518 


Municipal  Powers  and  Liabilities.  §  358 

declared  to  be  well  settled  that  no  action  for  damages  will  lie 
against  a  municipal  corporation  for  failure  to  abate  a  nuisance 
maintained  by  a  private  individual  upon  private  property,  where 
such  nui&ance  in  no  way  amounts  to  an  obstruction  of  a  public 
street  or  in  any  way  imperils  the  safety  of  travelers  upon  the 
street.124  So  where  the  common  council  of  a  city  is  authorized  by 
its  charter  to  pass  ordinances  for  the  raising  or  demolishing  of 
buildings  which  as  a  result  of  fire  "  may  become  dangerous  "  the 
power  so  conferred  has  been  declared  to  be  one  merely  of  local 
legislation,  and  it  is  decided  that  it  is  not  liable  for  a  failure  to 
exercise  the  power,  for  injuries  sustained  by  one  on  adjoining 
premises  which  were  caused  by  the  falling  of  the  wall  of  a  build- 
ing which  had  become  dangerous  by  reason  of  fire.125  And  where 
a  water  station  was  erected  by  a  municipality  in  a  street  and  a 
building  was  injured  by  the  negligent  use  of  water  at  such  station 
it  was  decided  that  the  municipality  was  not  liable  in  damages 
for  such  injury,  by  reason  of  its  failure  to  exercise  the  power  con- 
ferred upon  it  to  abate  such  station  as  a  nuisance,  it  being  declared 
that  the  streets  were  not  thereby  rendered  unsafe  and  that  the 
power  conferred  was  a  governmental  power,  a  failure  to  exercise 
which  did  not  render  the  city  liable.126 

124.    Mayor  of  Dalton  v.  Wilson,  125.    Cain  v.  City  of  Syracuse,  95 

118  Ga.  100,  44  S.  E.  830,  98  Am.  St.  N.  Y.  83. 

R.    101,  holding  that  in   such  a  case  126.  Greenville  v.  Britton,  19  Tex. 

the  remedy  is  an  action  for  damages  Civ.  App,  79,  45  S.  W.  970. 
against     the    one     maintaining    the 
nuisance. 


519 


CHAPTER  XVI. 

Kemedies — Nature  and  Form  of  Remedy. 

SECTION  359.  JS'ature  and  form  of  remedy  generally. 

300.  .Nature   and   form    of   remedy    continued — Ancient   or    common- 

law  remedies. 

301.  Nature  and   form  of   remedy   continued — Debt,   nuisance,    eject- 

ment, case,  trespass. 

302.  Mature  and  form  of  remedy  continued — Statutes. 

3G3.  Nature  and  form  of  remedy  continued — Law  and  equity. 

304.  Mature   and    form   of    remedy   continued — Effect   of    prayer   for 

relief — Election  of  remedy. 

305.  Remedy  by  indictment  and  in  equity — Statutes. 
300.  Same  subject  continued. 

307.  Same  subject  continued. 

§  359.  Nature  and  form  of  remedy  generally. — Remedies  in 
case  of  a  nuisance  are  public  and  private,  civil  and  criminal,  and 
action  or  suit  may  be  brought  in  law  or  equity,  or  a  criminal  pro- 
ceeding may  be  instituted,  depending,  but  not  exclusively  so,  upon 
the  nature  and  kind  of  nuisance.  There  also  exists  a  right  in 
certain  cases  to  summarily  abate  a  nuisance.  These  matters  will 
be  fully  considered  in  the  following  sections.  But  in  order  to 
conclusively  settle  the  question  whether  or  not  a  nuisance  exists 
resort  must  be  had  to  the  established  courts  of  the  land.1 

§  360.  Nature  and  form  of  remedy  continued — Ancient  or 
common  law  remedies. — The  old  common  law  remedies  were  two : 
(1)  Quod  permittat  prosternere.  This  was  in  the  nature  of  a  writ 
of  right  and  therefore  subject  to  great  delays.  It  commanded  the 
defendant  to  permit  the  plaintiff  to  abate  the  nuisance,  or  show 
cause  against  the  same ;  and  plaintiff  could  have  judgment  to  abate 
the  nuisance,  and  for  damages  against  the  defendant.      (2)   An 

1.  Hutton  v.  City  of  Camden,  39 
M.  J.  L.  (10  Vroom)  122,  23  Am. 
Rep.  203. 

520 


Remedies — Xature  and  Form. 


360 


assize  of  nuisance,  in  which  the  sheriff  was  commanded  to  sum- 
mon a  jury  to  view  the  premises,  and,  if  they  found  for  the 
plaintiff,  he  had  judgment  to  have  the  nuisance  abated  and  for 
damages.  Both  had  long  been  out  of  use  in  Blackstone's  day.  In 
the  assize  of  nuisance  the  jury  were  to  view  the  premises;  this  may 
be  done  now  in  the  case  at  law,  where  the  statute  so  provides  at  the 
request  of  either  party.2  If  one  elects  to  abate  a  private  nuisance 
he  cannot  afterwards  maintain  an  assize  of  nuisance,  the  judgment 


2.  Powell  v.  Bentley,  34  W.  Va. 
804,  803,  12  S.  E.  1085,  12  L.  R.  A. 
53.  per  curiam.  See,  also,  Barnet  v. 
Ihrie,  17  Serg.  &  R.  (Pa.)  174; 
Cornea  v.  Harris,  1  X.  Y.  ( 1  Comst. ) 
223;  Ellsworth  v.  Putnam,  16  Barb. 
(M.  Y.)   565. 

"  The  remedies  by  assize  of 
nuisance,  and  quod  permittat 
prosternere  have  been  out  of  use 
in  England  for  two  or  three  cen- 
turies. .  .  .  The  assize  of  nui- 
sance is  an  existing  remedy  in  Penn- 
sylvania; but  the  courts  have  found 
it  necessary  to  disregard  the  ancient 
forms  and  adapt  the  action  to  mod- 
ern practice."  Kintz  v.  McXeal,  1 
Denio   (N.  Y.),  436. 

"  The  ancient  remedy  for  an 
abatement  of  a  nuisance  was  a 
writ  of  nuisance  or  assize  of  nui- 
sance. This  writ  is  now  obsolete  in 
England,  but  unless  it  has  been 
abolished  by  statute,  it  may  be  re- 
garded as  theoretically  in  force  in 
the  United  States.  But  the  courts 
will  not  look  with  favor  upon  the 
use  of  it,  and  will  exact  a  strict 
compliance  with  all  requirements  of 
the  ancient  practice  in  case  it  is  re- 
sorted to."  Farnham  on  Waters  and 
Watercourses  (Ed.  1904),  §  987a,  p. 
2815. 

"The   old  common-law  remedy 


for  nuisance  formerly  was  by  as- 
size- of  nuisance,  the  office  of  which 
was  two-fold:  First,  for  an  abate- 
ment of  the  nuisance,  and,  second, 
for  damages;  and  where  this  remedy 
still  exists  it  may  be  brought,  and 
under  it  an  order  for  abatement  may 
be  obtained.  Prior  to  the  existence 
of  this  remedy  the  party  injured  was 
obliged  to  proceed  by  writ  of  quod 
permittat  prostenere,  under  which 
the  defendant  was  required  to  show 
cause,  why  the  plaintiff  should  not 
be  permitted  to  abate  the  nuisance, 
bu<  this  remedy  was  found  to  be  too 
complicated  and  slow,  and  it  gave 
place  to  the  writ  of  assize  of  nui- 
sance, but  both  of  those  remedies 
have  become  obsolete  and  given  place 
to  an  action  on  the  case,  under 
which  an  abatement  cannot  be  or- 
dered, unless  as  previously  stated, 
provision  therefor  is  made  by  stat- 
ute. Of  course,  unless  taken  away 
by  statute,  these  remedies  may  be 
resorted  to,  but  being  obsolete  pro- 
ceedings, the  courts  will  not  relax 
the  strictness  of  the  ancient  prac- 
tice." Wood  on  Nuisances,  3rd  Ed. 
§  843. 

That  jury  may  view  alleged 
nuisance,  see  Smith  v.  Morse,  148 
Mass.  408,  19  N.  E.  393. 


521 


§§  301,  362        Remedies — Nattjke  and  Form. 

in  which,  if  for  the  plaintiff,  should  be  for  an  abatement  of  the 


§  361.  Nature  and  form  of  remedy  continued — Debt,  nuisance, 
ejectment,  case,  trespass. — An  action  of  debt  will  not  be  sustained 
for  keeping  a  nuisance  which  is  a  criminal  offense  both  by  statute 
and  at  common-law  ;4  although  a  city  may  maintain  an  action  of 
debt  to  recover  a  statutory  penalty  imposed  for  its  benefit.0  So 
nuisance  and  not  ejectment  is  the  propar  remedy  for  an  encroach- 
ment on  land  by  the  projection  of  eaves  and  gutters.6  And  an 
action  on  the  case  lies  for  a  nuisance  affecting  the  health  of 
plaintiff  and  his  family  and  occasioned  by  the  erection  of  a  mill- 
dam.7  So  the  damage  to  a  lower  riparian  owner  by  the  pollution  of 
a  stream  being  neither  intentional,  direct  nor  immediate,  but 
consequential,  an  action  to  recover  for  such  damages  must  be  in 
case,  and  not  trespass.8 

§  362.  Nature  and  form  of  remedy  continued — Statutes. — 
If  a  statute  provides  for  a  fine  for  a  person  who  erects  or  main- 
tains a  public  nuisance  to  the  injury  of  any  part  of  the  citizens 
of  the  State  the  statute  controls.9  And  where  a  statutory  pro- 
vision allows  a  civil  action  to  enjoin  and  abate  a  nuisance  such 
authorization  is  discretionary  and  not  mandatory  as  to  a  private 
action  by  the  injured  party.10  So  an  action  for  the  abatement  of  a 
nuisance  and  for  damages  may,  where  the  statute  so  provides,  be 
brought  either  at  law  or  in  equity  according  to  the  procedure  in 

3.  Tate  v.  Parrish,  7  T.  B.  Mon.  749,  24  L.  R.  A.  G4,  48  Am.  St.  Rep. 
(23  Ky.)    325.  77 

4.  City  Council  of  Indianapolis  v.  9.  Moses  v.  State,  58  Ind.  185, 
Blythe,  2  Ind.  75.  186. 

5.  Rockland  v.  Farnsworth,  87  Me.  Exclusive  remedy.  Compare, 
473,   32  Atl.    1012,   Rev.   Stat.    Chap.  however,   §     365  herein. 

14.  §   16.  Statutory     remedy      followed— 

6.  Aiken  v.  Benedict,  39  Barb.  (N.  equitable  relief  denied.  See  City 
Y.)   400.  of  Pittsburgh  v.  Nicholson,  36  Pitts. 

7.  Story  v.  Hammond,  4  Ohio,  376.  Leg.  J.  N.  S.  185,  given  under  §  415, 

8.  Drake     v.     Lady     Ensley     Coal  note  1,  herein. 

Iron  &  R.  Co.,   102  Ala.   501,    14  So.  10.  Downing      v.      Oskaloosa,      86 

Iowa,   352,   53   N.   W.    256. 

522 


Remedies — Xature  and  Form.  §   3G3 

vogue  under  a  prior  statute,  and  where  plaintiff  elected  to  bring 
his  action  in  equity  it  was  error  for  the  court  on  defendant's  mo- 
tion to  transfer  it  to  the  law  docket  and  compel  plaintiff  to  try  it 
as  an  ordinary  action.11  Again,  a  statute  which  authorizes  a  city 
to  fill  up  low  lots  and  grounds  therein,  the  purpose  of  said  act  be- 
ing to  promote  and  secure  the  health  of  the  city  is  a  clear  case  of 
the  exercise  of  the  police  power ;  such  an  enactment  is  constitu- 
tional and  a  rightful  delegation  of  police  power  to  the  city  and  a 
proceeding  to  compel  such  low  lands  to  be  filed  up  may  properly 
be  brought  and  need  not  be  conducted  in  the  manner  of  statutory 
provisions  as  to  condemnation  of  lands.12  So  an  ordinance  of  a 
town,  which  prohibits  the  obstruction  of  waterway,  so  that  the 
water  shall  accumulate  in  any  street  and  which  thereby  prevents  a 
nuisance,  is  not  invalid  because  the  offense  of  creating  a  nuisance 
is  cognizable  under  the  general  laws  of  the  State,  for  the  mere 
obstruction  of  a  waterway  is  not  necessarily  a  nuisance.13 

§  363.  Nature  and  form  of  remedy  continued — Law  and 
equity. — An  action  for  damages  for  maintaining  a  private  nuisance 
may  be  brought  in  a* court  of  law;14  and  an  injunction  is  properly 
a  remedy  to  prevent  or  restrain  an  injury.10  So  the  equitable 
remedy  may  be  more  effective,16  since  a  court  of  chancery  has 
power  to  prevent  as  well  as  to  remedy  existing  evils.  But  such 
power  should  be  exercised  with  caution  ;17  so  in  an  equitable  suit 
the  parties'  rights  may  be  determined  if  it  is  clear  that  he  is  enti- 
tled to  relief  ;18  but  it  must  appear  that  a  necessity  exists  for  the  in- 

11,.  Gribben   v.   Hansen,   69    Iowa,  14.  Crawford    v.    Atglen    Axle    & 

255,  28  N.  W.  584.     Reed,  J.,   said:  Iron  Mfg.  Co.,  1  Cbest.  Co.  Rep.  412. 

"  Plaintiff  had  the  election  to  prose-  15.  Attorney-General   v.  New  Jer- 

cute  his  action  either   in  law  or  in  sey  R.  &  T.  Co.,  3  N.  J.  Eq.  136.   Se6, 

equity,   and   having  brought   it   in   a  also,  Carlisle  v.  Cooper,  18  N.  J.  Eq. 

court   of   equity,   he   had   a    right   to  241. 

have    it    tried    in    the    manner    pre-  16.  Kothenberthal     v.     Salem    Co., 

scribed  by  the  statute  for  the  trial  13  Oreg.  604. 

of  equitable  actions."  17.  Peck  v.  Elder,  3  Sandf.   (8  N. 

12.  Charleston    v.    Werner,    38    S.  Y.  Super.  Ct.)    126. 

C.  488,  37  Am.  St.  Rep.   776,    17    S.  18.  Carlisle    v.    Cooper,    18   N.    J. 

E.  33,  41  Am.  &  Eng.  Corp.  Cas.  392.       Eq.  241. 

13.  State  v.  Wilson,  106  N.  C.  718, 
11   S.  E.  254. 

523 


§  364  Remedies — Nature  and  Form. 

tervention  of  equity,  otherwise  no  relief  will  be  granted.19  Courts 
of  equity  have  concurrent  jurisdiction  with  courts  of  law  in  cases 
of  private  nuisance,  but  it  is  not  every  case  of  nuisance  which  will 
authorize  the  exercise  of  equity  jurisdiction.  It  rests  upon  the 
principle  of  clear  and  undoubted  rights  to  the  enjoyment  of  the 
subject  in  question,  and  it  will  only  be  exercised  in  case  of  strong 
and  imperious  necessity.20  So  it  is  held  in  Vermont  that  a  remedy 
to  abate  a  nuisance,  if  there  is  no  other  objection,  may  well  exist 
both  at  law  and  in  equity.21  And  a  continuing  nuisance  by  pol- 
luting the  waters  of  a  stream  may  be  proceeded  against  at  law  or 
in  equity  at  the  election  of  the  party  injured.2 


22 


§  364.  Nature  and  form  of  remedy  continued — Effect  of 
prayer  for  relief — Election  of  remedy. — It  is  held  that  the  prayer 
for  equitable  relief  does  not  change  the  nature  of  an  action  for 
damages  which  is  legal  and  make  it  equitable.23  So  the  prayer  of 
a  complaint  may  demand  two  kinds  of  relief,  one  equitable,  the 
other  legal,  and  it  is  not  error  to  refuse  to  require  the  plaintiff  to 
elect  whether  he  will  proceed  for  damages  or  for  an  injunction.24 
"  Causes  of  action  are  very  often  confounded  with  remedies, 
and  being  regarded  as  synonymous,  the  rules  established  with  ref- 
erence to  the  one  are  sometimes  supposed  to  be  applicable  to  the 
other.  This,  however,  is  a  mistaken  view  of  the  subject,  as  a 
brief  investigation  will  show.  A  cause  of  action  may  be  defined 
in  general  terms1  to  be  a  legal  right,  invalid  without  justification 
or  sufficient  excuse.  Upon  such  invasion  a  cause  of  action  arises, 
which  entitles  the  party  injured  to  some  relief,  by  the  application 

19.  State  v.  O'Leary,  155  Ind.  526,  The  jurisdiction  of  a  court  of 
58  N.  E.  703,  52  L.  R.  A.  299.     See,  equity   to   enjoin     a     continuing 

also     Fisk    v.    Wilbur,    7    Barb.     (N.  nuisance  and  compel   its  abatement 

Y.)   395.    See  §  415  et  seq.,  herein  as  is    well    settled.      Nixon     v.     Boling 

to  requisites  for  relief.  (Ala.   1906),  40  So.  210. 

20.  Fisk  v.  Wilbur,  7  Barb.  (N.  23.  Hellams  v.  Switzer,  24  S.  C. 
Y.)    395.  39. 

21.  State  v.  Martin,  68  Vt.  93,  34  24.  Emory  v.  Hazard  Powder  Co., 
Atl.  40.  22   S.  C.  476,  480,  481,  53  Am.  Rep. 

22.  City  of  Kewanee  v.  Otley,  204  730.  See  West  Muncie  Strawboard 
111.  402,  408,  68  N.  E.  388;  Barton  Co.  v.  Slack  (Ind.),  72  N.  E. 
v.  Union  Cattle  Co.,  28  Neb.  250.  879. 

524 


Kemedies — Nature  and  Form.  §  365 

of  such  remedies  as  the  law  may  afford.  But  the  cause  of  action 
and  the  remedy  sought,  are  entirely  different  matters.  The  one 
precedes  and,  it  is  true,  gives  rise  to  the  other,  but  they  are  sepa- 
rate and  distinct  from  each  other,  and  are  governed  by  different 
rules  and  principles.  It  is  true  that  the  motive  which  prompts  the 
action  is  a  desire  for  relief,  and  to  obtain  this  relief  is  the  ob- 
ject of  the  action,  and  in  this  sense  the  relief  sought  is  the  cause 
of  the  action ;  but  this  is  not  the  legal  sense  of  the  phrase  '  cause 
of  action.'  On  the  contrary,  that  sense  is  as  stated  above ;i.  e.,  a 
breach  of  one's  legal  rights."  25 

§  365.  Remedy  by  indictment  and  in  equity — Statutes. — A 

public  nuisance  may  as  to  the  party  and  the  remedy  be  a  private 
nuisance.26  But  while  a  public  nuisance  is  the  subject  of  indict- 
ment, yet  individuals  aggrieved  may  have  an  action  on  the  case, 
and  a  court  of  equity  has  jurisdiction  in  a  proper  case  to  decree 
that  a  nuisance  be  abated.27  So  where  plaintiff  has  sustained  a 
special  injury  both  to  his  health  and  property  from  the  same  cause 
or  nuisance  he  is  entitled  not  only  to  compensation  for  damages 
thereby  occasioned,  but  also  to  such  judgment  or  injunction  as  will 
prevent  further  perpetration  of  the  wrong. 2S  But  it  is  held  that 
equity  has  no  jurisdiction  over  common  or  public  nuisances;29  the 
remedy  by  indictment,  however,  is  not  exclusive  of  the  rights  of 
one  who  has  suffered  special  injury  different  in  kind  from  that 
of  the  public.30    And  equity  may  in  a  proper  case  take  cognizance 

25.  Emory  v.  Hazard  Powder  Co.,  30.  Seifried  v.  Hays,  81  Ky.  377. 
22  S.  C.  476,  481,  53  Am.  Rep.  730,  50  Am.  Rep.  167;  Gates  v.  Blincoe. 
pel   Simpson,  C.  J.  2  Dana  (Ky.),  158,  26  Am.  Dec.  440; 

26.  Yuba  County  v.  Kate  Hayes  Van  Bergen  v.  Van  Bergen,  2  Johns. 
Min.  Co.,  141  Cal.  360,  74  Pac.  1049.  Ch.    (N.   Y.)    272;   Hellams  v.    Swit- 

27.  Ronayne  v.  Loranger,  66  Mich.  zcr,  24  S.  C.  39.  See  Meehling  v. 
373,  33  K  W.  S40,  10  West.  Rep.  Kittining  Bridge  Co.,  1  Grant's  Cas. 
523'  (Pa.)    416.     See   Chap.  XIX,   herein 

28.  Chapman    v.    City   of    Roches-  as  to  special  injury. 

ter,  110  N.  Y.  273,  276,  277,  18  N.  Y.  Equity  has  jurisdiction  of  in- 

St.  R.  133,  1  L.  R.  A.  296,  6  Am.  St.  dictable  nuisance  at  instance  of  in- 

Rep.  366.  dividual    injured    as    in    case    of    a 

29.  Higgins  v.  City  of  Princeton,  bawdy  house  of  ill  repute.  Ingersoll 
8  N.  J.  Eq.  309.  v.    Rousseau,   35   Wash.    92,   76    Pac. 

513. 

525 


§  366 


Remedies — Xature  and  Foem. 


of  public  nuisances  and  grant  relief.31  So  a  proceeding  in  equity 
to  enjoin  a  liquor  nuisance  is  purely  civil  in  its  character,  being 
a  proceeding  to  fix  the  status  of  the  property ;  and  the  fact  that 
the  nuisance  is  also  a  breach  of  the  criminal  law  doss  not  make 
the  proceeding  criminal.32  And  a  petition  for  an  injunction  under 
the  nuisance  act  of  Xew  Hampshire  relating  to  liquor  nuisances 
is  a  civil  proceeding,  and  being  such  the  questions  at  issue  are  to 
be  determined  upon  the  balance  of  probabilities.33 

§  366.  Same  subject  continued. — If  an  action  is  to  be  regarded 
as  both  legal  and  equitable  in  its  character  it  may  be  maintained  by 
the  people  of  the  State  through  the  attorney-general  for  the  re- 
moval of  a  nuisance  and  for  an  injunction  restraining  it's  con- 
tinuance and  for  damages  and  an  objection  that  an  indictment  or 
information  is  the  only  remedy  will  not  be  sustained,34  and  in  such 
case  the  action  to  enjoin  may  be  brought  in  the  name  of  the 
State.30  A  remedy  by  indictment  is,  however,  also  appropriate, 
although  there  is  a  statutory  civil  remedy,36  especially  where  the 


31.  Robinson  v.  Baltimore  &  O. 
R.  Co.,  129  Fed.  753  (dumping  coal 
at  siding  and  station  and  suspend- 
ing freight  business)  ;  Lang  v.  Mer- 
win,  99  Me.  486,  59  Atl.  1021,  105 
Am.  St.  Rep.  293  (slot  machine  in 
cigar  store)  ;  Carleton  v.  Rugg,  149 
Mass.  550,  22  N.  E.  55,  5  L.  R.  A. 
193;  Rowe  v.  Granite  Bridge  Corp., 
21  Pick.  (38  Mass.)  344;  Pittsburg 
v.  Epping-Carpenter  Co.  (Pa.),  29 
Pitts.  L.  J.  N.  S.  255;  Ingersoll  v. 
Rousseau,  35  Wash.  92,  76  Pac.  513 
( bawdy  house,  suit  by  private  citi- 
zen )  ;  Attorney-General  v.  Cleaver, 
IS  Ves.  211  (offensive  trade,  infor- 
mation filed  at  relation  of  several  in- 
habitants to  restrain  same)  ;  Soltau 
v.  De  Held,  2  Sim.  N.  S.  150  (bill 
may  be  filed  to  restrain  public  nui- 
sance without  making  attorney-gen- 
eral a  party,  if  plaintiff  sustains 
special  damage).     See  Davis  v.  Auld, 


96  Me.  559,  53  Atl.  118   (liquor  nui- 
sance). 

Civil  action  on  behalf  of  pub- 
lic will  lie  if  nuisance  is  public. 
Board  of  Health  v.  Cotton  Mills,  46 
La.  Ann.  806,  15  So.  164. 

32.  State  v.  Collins,  74  Vt.  43,  52 
Atl.   69;   Acts   1898,  No.  90,  §  2. 

33.  State,  Thorndike  v.  Collins,  68 
N.  H.  299,  44  Atl.  495 ;  Pub.  Stat.  c. 
205,  §§  4,  5. 

34.  People  v.  Metropolitan  Tele- 
phone &  Telegraph  Co.,  11  Abb.  N.  C. 
(N.  Y.)  304,  313,  64  How.  Pr.  '*(N. 
Y.)  120,  123,  relying  upon  People  v. 
Vanderbilt,  26  N.  Y.  287;  People  v. 
Corporation  of  Albany,  11  Wend.  (N. 
Y.)    539,  543. 

35.  Reaves  v.  Territory,  13  Okla. 
396,  74  Pac.  951,  under  Wilson's 
Stat.  1903,  §  4440. 

36.  St.  Louis,  A.  &  T.  Ry.  Co.  v. 
State,  52  Ark.  51,  11  S.  W.  1035. 


126 


Remedies — Nature  and  Form.  §  360 

statute  so  authorizes.37  Again,  although  a  party  may  be  con- 
victed of  a  public  nuisance,  still  the  nuisance  may  be  abated  or 
destroyed.38  And  where  the  penal  code  declares  various  acts  bear- 
ing upon  the  pollution  of  streams  of  water  of  a  certain  class  to  be 
a  misdemeanor  such  provision  may  have  a  bearing  in  a  prosecu- 
tion by  the  State  under  the  code,  but  in  litigation  involving  the 
abatement  of  a  nuisance  it  has  no  direct  bearing.39  So  the  fact 
that  certain  acts  are  made  a  misdemeanor  by  the  penal  code  and 
punishable  as  such,  does  not  make  them  less  a  nuisance,  nor  imply 
that  the  legislature  intended  to  make  the  criminal  remedy  ex- 
clusive of  the  civil.40  And  if  a  statute  defines  what  are  nuisances 
and  prescribes  a  remedy  by  action,  nevertheless  any  common  law 
remedy  in  the  abatement  of  nuisances  which  the  statute  does  not 
embrace  is  not  taken  away.41  But  a  statute  may  also  so  provide 
for  a  remedy  by  civil  action  for  damages  as  to  exclude  a  criminal 
prosecution.42  Again,  the  remedy  provided  in  Georgia  Act.  Dec, 
1899,  for  abating  by  injunction  as  a  public  nuisance  a  "  blind 
tiger,"  is  cumulative  of  other  remedies,  provided  by  State  law^, 
and  may  be  made  available  even  in  a  case  where  the  other  reme- 
dies are  themselves  complete  and  adequate.43  So  it  is  held  in 
Indiana  that  the  fact  that  a  nuisance  isi  a  misdemeanor  and  pun- 
ishable as  such  does  not  make  the  criminal  exclusive  of  the  civil 
remedy.44  And  the  power  conferred  by  statute  upon  incorporated 
towns  to  declare  and  abate  nuisances  does  not  exclude  a  resort  to 
the   courts    for    such    purpose,    but   where    there    are    concurring 

37.  Davis  v.  Auld,  96  Me.  559,  53  42.  Eaton  v.  People,  30  Colo.  345, 
Atl.  118.                                                             70   Pac.   426;   Mills   Annot.    Stat.    §§ 

38.  Woods    v.    Cottrell     (W.    Va.)        1357,  3960,  3963. 

,  65  L.  R.  A.  616,  47  S.  E.  275.  43.  Legg    v.    Anderson,     116    Ga. 

Examine     State     v.     McMaster      (N.  401,  42   S.  E.  720. 

Dak.),  99  N.  W.  58.  44.  State  v.  Ohio  Oil  Co.,  150  Ind. 

39.  Spring  Valley  Waterworks  v.  21,  38,  41,  49  N.  E.  809,  47  L.  R.  A. 
Fifield,  136  Cal.  14,  68  Pac.  108;  627,  per  McCabe,  J.  See,  also,  Port 
Penal  Code,  §  374,  Civ.  Code,  §9  of  Mobile  v.  Louisville  R.  R.  Co.,  84 
3479,   3493.  Ala.   115,    126,  4   So.   106,  5   Am.  St. 

40.  People  v.  Truckee  Lumber  Co.,  Rep.  342;  People  v.  Truckee  Lumber 
116  Cal.  397,  39  L.  R.  A.  581,  58  Am.  Co.,  116  Cal.  397,  48  Pac.  374;  Cran- 
St.  Rep.  183,  48  Pac.  374.  ford  v.  Tyrrell,   128  N.   Y.  341,   311. 

41.  Stiles  v.  Laird,  5  Cal.   121,  63  2S  N.  E.  515. 
Am.  Dec.   110. 

527 


§  367  Remedies — Nature  and  Form. 

effectual  remedies,  the  choice  and  uninterrupted  prosecution  of  one 
excludes  the  other.45 

§  367.  Same  subject  concluded. — If  the  method  contemplated 
by  the  statute  to  abate  a  nuisance  in  the  name  of  a  city  is  by  ordi- 
nance and  criminal  prosecution  a  civil  action  will  not  lie  at  the 
instance  of  an  individual  not  authorized  to  bring  an  action  for 
the  benefit  of  the  public,  for  if  the  statute  so  contemplates,  the 
abatement  is  to  be  effected  by  the  direct  action  of  an  ordinance 
rather  than  by  equitable  proceedings'  in  court.46  So  in  Iowa  where 
the  code  so  permits  if  a  party  sues  for  damages  occasioned  by  a 
nuisance,  he  is  entitled  to  have  his  damages  assessed  by  a  jury, 
notwithstanding  he  may  seek  in  the  same  action  to  have  the  con- 
tinuation of  the  nuisance  enjoined.47  And  in  Kentucky  a  use  of 
property,  which  was  at  common  law  a  nuisance,  does  not  cease 
to  be  so  because  the  same  act  is  made  an  offense  by  statute,  and 
a  different  punishment  provided.  The  party  creating  the  nuisance 
may  be  pursued  under  either  the  common  law  or  statutory 
remedy.48  So  it  is  also  held  in  Maine  that  the  fact  that  the  State 
by  statute  or  by  common  law  can  proceed,  and  has  proceeded  by 
criminal  prosecution  to  punish  for  the  maintenance  of  a  common 
nuisance  does  not  prevent  the  legislature  authorizing  it  to  proceed 
in  equity  to  restrain,  enjoin  or  abate  such  nuisance,  by  the  use  of 
the  equity  writ  of  injunction  and  a  statute  conferring  such  juris- 
diction is  within  the  legislative  power  and  is  not  prohibited  by 
any  provision  of  the  constitution.49  And  under  a  New  York  de- 
cision the  public  remedy  is  ordinarily  by  indictment  for  the  pun- 
ishment of  the  offender  wherein  on  judgment  of  conviction  the 
removal  or  destruction  of  the  thing  constituting  the  nuisance,  if 
physical  and  tangible,  may  be  adjudged,  or  by  bill  in  equity  filed 
on  behalf  of  the  people.  But  the  remedy  by  judicial  prosecution, 
in  rem  or  in  personam,  is  not  exclusive  where  the  statute  in  a  par- 

45.  American  Furniture  Co.  v.  Moines  R.  Co.,  63  Iowa,  680,  16  N. 
Town  of  Batesville,   139  Ind.  77,  38       W.  567. 

N.  E.  408,  35  N.  E.  682.  48.  Louisville   &   N.   R.   R.    Co.   v. 

46.  City  of  Ottumwa  v.  Chinn,  75  Commonwealth  (Super.  Ct.),  16  Ky. 
Iowa,  405,  39  N.  W.  670.     See  §  415,       L.  Rep.  347. 

note  1,  herein.  49.  Davis  v.  Auld,  96  Me.  559.  53 

47.  Miller  v.   The  Keokuk   &   Des      Atl.  118;  Pub.  Laws  1891,  c.  98. 

528 


Remedies — ISTatuee  and  Form.  §  367 

ticular  case  gives  a.  remedy  by  summary  abatement  and  the  remedy 
is  appropriate  to  the  object  to  be  accomplished.50  So  in  Vermont  a 
statute  may  provide  that  a  court  of  chancery  may  abate  a  nuisance, 
although  other  statutes  provide  for  its  abatement  by  other  means,51 
and  in  the  same  State  the  provision  in  a  statute,  which  imposes 
a  fine  for  placing  any  obstructions  in  a  highway,  to  be  recovered  by 
a  complaint  made  to  a  justice  of  the  peace,  is  merely  cumulative, 
and  does  not  take  away  the  remedy  by  indictment  at  common  law. 


52 


50.  Lawton  v.  Steele,  119  N.  Y.  Atl.  40,  holding  that  the  later  stat- 
227,  237,  29  N.  Y.  St.  R.  581,  995,  23  ute  did  not  repeal  by  implication  the 
N.  E.  878,  7  L.  R.  A.  134,  41  Alb.  L.  earlier  statute. 

J.  348,  16  Am.  St.  Rep.  813.  52.  State  v.  Wilkinson,  2  Vt.  480, 

51.  State  v.  Martin,  68  Vt.  93,  34  21  Am.  Dec.  560. 


529 


CHAPTER  XVII. 

Remedies  Continued — Right  to  Abate. 

Section  368.  Right  to  abate  public  nuisance  generally. 

369.  Same  subject — Qualifications  of  right. 

370.  Same  subject — Necessity  of  special  injury  to  individual. 

371.  Instances  of  right  to  summarily  abate  by  individual. 

372.  Abatement  by  municipality. 

373.  .Nuisances  on  public  lands — Power  of  Congress  to  order  abate- 

ment. 

374.  Right  of  individual  to  summarily  abate  private  nuisances. 

375.  Same  subject — When  right  may  be  exercised. 

376.  Limitations  on  right  to  abate. 

377.  Same  subject  continued — Buildings  and  structures. 

378.  Same  subject  continued — Other  instances. 

379.  Right  to  summarily  abate  as  affected  by  statute. 

380.  Right   not   affected  by   constitutional   provisions   for   protection 

of  property. 

381.  Cost  of  abating  nuisance. 

§  368.  Right  to  abate  public  nuisances  generally. — While  an 
indictment  is  ordinarily  the  remedy  for  a  public  nuisance  yet  it  is 
a  recognized  right,  derived  from  the  common  law,  that  an  individ- 
ual may  summarily  abate  such  a  nuisance.1     So  it  is  said  in  a  case 

1.  Harvey    v.    Dewoody,    18     Ark.  travel   in  public  highways   and  navi- 

252;      City   of    Denver   v.    Mullen,    7  gable  streams,  is  a  common  or  public 

Colo.    345,    3    Pac.    693;       Brook    v.  nuisance,  which  may  be  removed  and 

O'Boyle,  27    111.    App.    384;   Ronayne  abated  by  any  of  the  king's  subjects 

v.  Loringer,  66  Mich.  373,  33  N.  W.  (4  Black  Com.  167;   Earp  v.  Lee,  71 

840,   10   West.  524;   Manhattan  Mfg.  111.    193).     In   Comyn's   Digest    (Tit. 

&  F.  Co.  v.  Van  Keuren,  23  N.  J.  Eq.  Action  on  the  case  for  a  nuisance,  D. 

251;      Wetmore  v.    Tracy,    14   Wend.  4)    it   is   said:   'If  it   be   a   common 

(N.  Y. )   250,  28  Am.  Dec.  525;   Lan-  nuisance,  as  a  gate  erected  across  a 

caster  Turnpike  Co.  v.  Rogers,  2  Pa.  highway,    every    one    may    throw    it 

114,  44  Am.  Dec.  179.     In  McLean  v.  down.'  In  Bacon's  Abridgement    (Tit. 

Matthews,  7  111.  App.  602,  it  is  said:  Nuisance,     61)      'anyone     may     pull 

"  It  is  a  settled  principle  of  the  com-  down   or   otherwise   abate   a  common 

mon    law,    that    whatever    obstructs  nuisance,  as   a   new   gate,  or  even  a 

530 


Remedies  Continued — Right  to  Abate.  §  369 

in  New  Jersey  that:  "  The  right  to  abate  public  nuisance?, 
whether  we  regard  it  as1  existing  in  the  municipalities,  or  in  the 
community,  or  in  the  hands  of  the  individual,  is  a  common  law- 
right,  and  is  denied  in  every  instance  of  its  exercise  from  the  same 
source,  necessity.  It  is  akin  to  destroying  property  for  the  public 
safety,  in  case  of  a  devastating  hre  or  other  controlling  exigency.''2 
And  again  in  a  New  York  decision  it  is  declared  that:  "  The 
right  of  summary  abatement  of  a  nuisance  without  judicial  process 
or  proceeding  was  an  established  principle  of  the  common  law  long 
before  the  adoption  of  our  constitution,  and  it  has  never  been  sup- 
posed that  this  common  law  principle  was  abrogated  by  the  pro- 
vision for  the  protection  of  life,  liberty  and  property  in  our  State 
constitution,  although  the  exercise  of  the  right  might  result  in  the 
destruction  of  property."  3 

§  369.  Same  subject — Qualifications  of  right. — A  nuisance 
must  exist  before  the  cause  of  it  can  be  abated.4  And  it  has  been 
decided  that  to  authorize  the  abating  of  a  nuisance  the  thing  con- 
sidered as  such  must  be  so  at  the  time  it  is  abated,  it  being  no  jus- 
tification for  the  abatement  thereof  that  it  had  been  a  nuisance 
and  was  likely  to  be  so  again.5     This  right  of  an  individual  to 

new  house,  erected  in  a  highway;  for  government  chose  the  latter  remedy. 

if  one  whose  estate  is  prejudiced  by  I'i  re  Debs,  158  U.  S.  564,  39  L.  Ed. 

a    private    nuisance   may   justify   the  1092,   15  Sup.  Ct.  R.   900. 

entering  into   another's   grounds   and  2.  Hutton  v.   City   of   Camden,  39 

pulling   down    and    destroying    it,    it  N.   J.  L.    122,   23   Am.  Rep.  203,  per 

cannot    but    follow,    a    portion,    that  Beasley,   C.  J. 

any  one  may  destroy  a  common  nui-  3.  Lawton  v.  Steele,  119  N.  Y.  226, 

Bance.'"     Per  Wilson,  J.  235,  23  N.  E.  878,  16  Am.  St.  R.  813, 

An  injunction  may  be  granted  7  L.  R.  A.  134,  per  Andrews,  J. 

at   the    suit    of   the    government  4.  The  King  v.  Wharton,   12  Mod. 

against   the  continuance  of   a    public  *510    (case  842). 

nuisance  consisting  of  an  obstruction  5.  Gates  v.  Blincoe,  2  Dana  (Ky.), 
of  interstate  commerce,  its  right  158,  26  Am.  Dec.  440;  Great  Falls  v. 
thereto  not  being  precluded  by  the  Worster,  15  N.  H.  442.  But  coin- 
fact  that  it  may  abate  such  nuisance  pare  Amoskeag  M'f'g.  Co.  v.  Goodall, 
by  force,  it  being  declared  that  the  46  N.  H.  53,  wherein  it  is  held  that 
right  to  use  force  does  not  exclude  while  the  general  rule  is  as  stated  in 
an  appeal  to  the  courts  but  that  it  is  the  text,  yet  that  where  a  party  can 
a  matter  of  commendation   that  the  maintain  an  action  for  a  nuisance,  he 

531 


£   370  .Remedies  Continued — Right  to  Abate. 

summarily  abate  or  remove  a  nuisance  is  also  subject  to  the  quali- 
fication that  in  exercising  his  right  he  must  act  in  a.  peaceable  man- 
ner and  without  creating  a  breach  of  the  peace.6  "  The  right  to 
abate  a  public  nuisance  belongs  to  every  citizen,  yet  it  cannot  be 
lawfully  exerted  if  its  exercise  involve  a  breach  of  the  peace- 
YYhen  such  is  the  case  the  party  erecting  the  nuisance  must  be  pro- 
ceded  against  legally."  7  So  it  has  been  decided  that  where  an 
obstruction  in  the  highway  constitutes  a  public  nuisance  an  indi- 
vidual, who  is  incommoded  thereby,  will  be  guilty  of  a  breach  of 
the  peace  where  he  continues  his  attempt  to  remove  it  after  such 
attempt  has  been  resisted.8  Again,  though  a  person  may  have  the 
right  to  remove  a  nuisance  created  by  materials  or  property  be- 
longing to  another,  yet  he  has  no  right  to  take  and  appropriate 
such  materials  or  property  to  his  own  use.9 

§  370.  Same  subject — Necessity  of  special  injury  to  individ- 
ual.— The  right  of  an  individual  to  abate  a  public  nuisance  is  said 
in  some  cases  to  exist  without  regard  to  the  question  whether  it 
is  an  immediate  injury  to  him,  on  the  ground  that  such  a  nuisance 
is  deemed  an  injury  to  the  whole  community,  every  person  in 
which  is  supposed  to  be  aggrieved  by  it.10  This  view,  however,  is 
not  generally  accepted  by  the  majority  of  the  courts,  and  the  doc- 
trine which  is  recognized  by  the  better  authorities,  and  may  be 
said  to  be  the  prevailing  one,  is  that  an  individual  acquires  no 
riglt  to  summarily  abate  a  public  nuisance  from  the  mere  fact  of 
its  existence,  but  that  to  entitle  him  to  so  abate  the  same  there  must 
be  some  special  injury  to  him.11     As  is  said  in  a  case  in  Iowa : 

may  enter  and  abate  it  although   at  9.  Larson  v.  Furlong,  50  Wis.  681, 

the  time  it   is  causing  but   nominal  8  N.  W.  1   (so  holding  in  the  case  of 

and  no  actual  damage.  a  public  nuisance  created  by  a  dock 

6.  Turner  v.  Lacy,  37  Or.   158,  61  built   into  the  waters  of  a  lake   on 
Pac.    342;    Johnson    v.     Maxwell,    2  land  which  belonged  to  the  state). 
Wash.  482,  27  Pac.  1071.  10.  Gunter  v.   Geary,   1    Cal.   462. 

7.  Day  v.  Day,  4  Md.  262,  270,  per  466,  per  Bennett,  J.;  Gates  v.  Blin- 
Le  Grand,  C.  J.  coe,  2  Dana  (Ky.),  158,  26  Am.  Dec. 

8.  State  v.  White,  18  R.  I.  473,  28  440. 

Atl.  968.  11,  Coast   Co.  v.   Spring  Lake,  56 

532 


Remedies  Continued — Right  to  Abate. 


"  This  summary  method  of  redressing  a  grievance,  should  be  re- 
garded with  great  jealousy,  and  authorized  only  in  cases  of  par- 
ticular emergency  requiring  a  more  speedy  remedy  than  can  be 
had  by  the  ordinary  proceedings  at  law.  If  the  nuisance  alleged 
in  this  case  was  sufficiently  urgent  to  justify  the  defendants  in 
redressing  the  wrong  by  their  own  power,  without  the  more  com- 
mendable resort  to  judicial  authority,  they  should  at  least  have 
confined  theii  operations  to  the  dam  itself;  and  to  such  portions 
of  it  only  as  caused,  and  by  dejection  would  have  removed,  the 
injurious  effects  alleged."  12  So  it  has  been  declared  in  a  New 
York  decision  that  "  The  general  proposition  has  been  asserted 
in  text  books  and  repeated  in  judicial  opinions,  that  any  person 
may  abate  a  public  nuisance.  But  the  best  considered  authorities 
in  this  country  and  in  England  now  hold  that  a  public  nuisance 
can  only  be  abated  by  an  individual  where  it  obstructs  his  private 
right,  or  interferes  at  the  time  with  his  enjoyment  of  a  right  com- 
mon to  many,  as  the  right  of  passage  upon  the  public  highway, 
and  he  thereby  sustains  a  special  injury."  13     And  in  a  case  in 


N.  J.  Eq.  615,  618,  36  Atl.  821 ;  Brown 
v.  De  Groff,  50  N.  J.  L.  409,  14  Atl. 
219,  12  Cent.  818;  Griffith  v.  McCol- 
lum,  46  Barb.  (N.  Y.)  561;  Harri- 
son v.  Ritson,  37  Barb.  (N.  Y.)  301; 
Griffith  v.  Holman,  23  Wash.  347,  63 
Pac.  239;  Larson  v.  Furlong,  50  Wis. 
681,  8  N.  W.  1;  Bateman  v.  Bluck, 
18,   Q.    B.   870. 

Tie  right  does  not  exist  to 
remove  a  nuisance  without  judicial 
proceeding?  where  there  is  no  right 
of  action  to  restrain  or  remove  or  to 
obtain  damages  in  respect  thereto. 
Priewe  v.  Fitzimmons  &  Connell  Co., 
117  Wis.  497,  94  N.  W.  317. 

In  the  case  of  an  oyster  house 
erected  in  a  tidal  river  by  an  in- 
dividual opposite  villa  lots  owned  by 
another  it  was  decided  that  though  it 
was  a  public  nuisance,  yet  that  the 
owner  of  such  lots  must  show,  to 
justify  his  tearing  it  down  before  it 


was  used,  that  it  was  a  private  nui- 
sance to  him  also  and  that  merely 
because  the  building  was  unsightly 
was  no  justification  for  his  act.  Bow- 
den  v.  Lewis,  13  R.  I.  189,  43  Am. 
Rep.   21. 

Where  a  dock  was  built  into 
the  waters  of  a  lake  the  rule  was 
also  applied.  Larson  v.  Furlong,  50 
Wis.  681,  8  N.  W.   I. 

It  has  also  been  declared  that 
if  an  individual  can  with  rea- 
sonable care,  notwithstanding  the 
act  complained  of,  enjoy  the  right  or 
franchise  belonging  to  him,  he  is  not. 
at  liberty  to  destroy  or  interfere 
with  the  property  of  the  wrong-doer. 
Har rower  v.  Ritson,  37  Barb.  (N. 
Y.)    301. 

12.  Moffett  v.  Brewer,  1  Iowa,  348, 
350,  per  Greene,  J. 

1.3.  Lawton  v.  Steele,  119  N.  Y. 
226,  237,  23  N.  E.  878,   7  L.  R.  A. 


533 


§   371  Remedies  Continued — Right  to  Abate. 

Wisconsin  it  is  also  said:  "  It  seems  to  be  now  well  settled  by  tie 
great  weight  of  authority,  that  a  private  person  can  neither  main- 
tain an  action  to  prevent  the  erection  of,  or  to  abate  a  public  nui- 
sance, without  alleging  facts  showing  that  he  will  suffer  sonic 
special  damage  not  common  to  the  rest  of  the  public  by  the  erection 
of  such  nuisance,  or,  in  an  action  to  abate  the  same,  that  he  has 
suffered  some  injury  peculiar  to  himself  and  not  common  to  the 
public.  ...  It  seems  to  us  that  it  follows  logically  from  this 
rule  in  regard  to  the  maintenance  of  an  action  by  a  private  person 
to  prevent  or  abate  a  public  nuisance,  that  if  such  private  person 
undertakes  to  abate  such  public  nuisance  without  action,  in  order 
to  justify  himself  he  must  show  that  such  nuisance  was  injurious 
to  his  private  interests,  and  that  he  has  suffered  private  damages, 
not  common  to  the  public,  by  the  erection  and  continuance 
thereof."14 

§  371.  Instance  of  right  to  summarily  abate  by  individual. — 
The  right  of  an  individual  to  summarily  abate  or  remove  a  public 
nuisance  which  causes  a  special  injury  to  him  has  been  recog- 
nized in  the  case  of  a  dock  ;15  of  a  dwelling  house  in  certain  in- 
stances ;16  and  a  bridge  constructed,  without  right,  across  a  navi- 
gable river.17  And  where  a  turnpike  company  having  erected  a 
toll  house  on  land  of  another  under  license,  in  consideration  of 
the  user  of  the  road  by  such  owner,  abandoned  the  house  as  a  toll 
house  and  removed  the  gate  it  was  decided  that  the  house  became 
a  public  nuisance  and  might  be  removed  by  any  one  injured.18  And 
where  a  telephone  pole  was  erected  on  a  sidewalk  in  front  of  the 

134,  16  Am.  St.  R.  813,  per  Andrews,  16.  Meeker  v.  Van  Rensselaer,   15 

J.,  citing  Brown  v.  Perkins,  12  Gray  Wend.    (N.  Y.)   397   (recognizing  such 

(Mass.),  89;   Mayor  of  Colchester  v.  right   where    a    dwelling   house    was, 

Brooke,   7   Ad.   &  El.    339;    Dimes  v.  during    a    cholera   epidemic,     a    nui- 

Petley,  15  Ad.  &  El.  276;  Fort  Plain  sance  to  individuals  residing  near). 

Bridge   Co.  v.   Smith.   30   N.   Y.    44;  17.  State  v.  Dibble,  49  N.  C.   107. 

Harrower  v.  Ritson,  37  Barb.   (N.  Y.)  18.  Lancaster     Turnpike      Co.     v. 

301.  Rogers,  2  Pa.   St.    114,  44  Am.  Dec. 

14.  Larson     v.     Furlong,    50   Wis.  179. 
681,  686,  8N.W.  1,  per  Taylor,  J. 

1.5.  Larson     v.     Furlong,    63   Wis. 
323.  23  N.  W.  584. 

534 


Remedies  Continued — Right  to  Abate.  §  37] 

premises  of  au  abutting  owner  and  no  license  for  its  erection  waa 
obtained  as  was  required  by  a  city  ordinance  it  was  decided  that 
such  owner  was  justified  in  cutting  down  the  pole.19     Where,  how- 
ever, one  took  title  to  land  subject  to  an  easement,  by  virtue  of  a 
reservation  in  the  original  deed,  to  construct  a  dam  of  a  certain 
height,  it  was  decided  that  he  could  not  relieve  himself  from  lia- 
bility for  a  criminal  prosecution  for  destroying  a  part  of  the  dam 
by  the  claim  that  he  had  acted  in  the  exercise  of  his  right  to  abate 
a  public  nuisance.20     And  the  right  of  an  individual,  in  some  cases, 
to  abate  or  remove  a  public  nuisance  in  the  highway  has  been  held 
not  to  apply  to  the  case  of  a  dam  in  a  navigable  river  by  which  a 
shoaling  in   the   river  below  was  caused,   where  such   dam  was 
erected  under  special  statutory  authorization,   and   there  was  a 
special  provision  in  the  statute  giving  a  full  and  adequate  remedy 
in  such  cases.     It  was  said  by  the  court  in  this  case :  "  The  dam 
had  been  lawfully  erected,  upon  proceedings  had  under  the  stat- 
ute, and  had  been  constructed  by  the  authority  of  the  legislature, 
which,  anticipating  that  one  of  the  results  might  be  the  shoaling 
of  the  river  below  the  dam,  had  provided  a  full   and  adequate 
remedy  against  this  by  imposing  upon  the  proprietors  a  certain 
duty  in  relation  thereto,  and,  in  case  of  a  failure  on  their  part  for 
a  certain  length  of  time,  upon  a  body  of  the  public  authorities, 
the  harbor   commissioners,   representing  the   commonwealth,   for 
whose  expenditure  the  proprietors  were  afterwards  bound  to  re- 
imburse the  commonwealth.     The  ground  upon  which   a  party 
may  sometimes  act  in  the  removal  of  a  nuisance,  that,  in  the  ex- 
ercise of  his  right,  he  cannot  wait  for  the  slow  processes  of  law, 
has  here  no  application.     The  injury  which  the  defendant  sus- 
tained, in  being  unable  to  use  the  stream  below,  was  immediately 
caused  by  neglect  of  the  proper  precautions  for  which  the  statute 
had  provided,  and  which  had  resulted  in  the  shoaling  of  the  water. 
The  remedy  for  this  was  not  to  destroy  the  structure,  but  to  en- 
force, through  the  proper  authorities,  the  provisions  of  law  by 
which  this  injury  to  navigation  below  the  dam  had  been  antioi- 

19.  York  Telephone  Co.  v.  Keesey.  20.  State  v.  Suttle,  115  N.  C.  784, 

5  Pa.  Dist.  R.  366.  20  S.  E.  725. 

535 


372 


Kemedies  Continued — Eight  to  Abate. 


pated  and  guarded  against,  for,  if  we  should  concede  the  defend- 
ants proposition,  that  the  proprietors  would  be  indictable  for  a 
nuisance  in  failing  to  remove  the  shoaling  occasioned  by  this 
bridge,  would  it  by  any  means  follow  that  one  situated  as  the  de- 
fendant claimed  to  be  would  be  authorized  to  destroy  it."  21 


§  372.  Abatement  by  municipality. — The  power  of  a  munici- 
pality to  abate  or  remove  public  nuisances  within  its  corporate 
limits  is  also  generally  recognized.22  So  such  power  has  been  held 
to  exist  in  the  case  of  electric  wires  by  which  human  life  is  en- 
dangered ;23  lamp  posts  erected  without  authority  and  which  ob- 
struct the  highways,24  and  a  nuisance  consisting  of  the  pollution  of 
the  water  supply  of  a  city.20  And  where  fishing  nets  are  set  in 
certain  waters  in  violation  of  a  statute  declaring  such  nets  to  be 
nuisances  they  may  likewise  be  destroyed  in  order  to  abate  the 
nuisance.26       Again,  where  a  license  granted  by  a  city  to  erect 


21.  Commonwealth  v.  Tolman,  14V* 
Mass.  229,  21  N.  E.  377,  3  L.  R.  A. 
747,  per  Devens,  J. 

22.  See  sees.  345  et  seq.,  herein. 
An  urban  district  conncil  may 

under  the  English  public  health  act 
of  1875,  §  149,  remove  encroachments 
upon  highways  within  its  control 
without  first  taking  proceedings  sum- 
marily or  by  indictment  against  the 
person  alleged  to  have  encroached. 
Reynolds  v.  Urban  District  Council, 
(1896)  1  Q.  B.  604,  65  L.  J.  Q.  B.  N. 
S.  400,  74  Law.  T.  422. 

The  English  Public  Health  Act 
of  1891,  §  2,  sub.  1,  providing  for 
the  summary  abatement  of  any  water- 
course or  drain  which  is  a  nuisance 
is  not  applicable  to  public  sewers. 
Fulham  Vestry  v.  London  County 
Council  (1897),  2  Q.  B.  76,  66  L.  J. 
Q.  B.  N.  S.  515,  76  Law  T.  691. 

23.  United  States  Ilium.  Co.  v. 
Grant,  55  Hun  (N.  Y.),  222,  27  N.  Y. 


St.  R.  767,  7  N.  Y.  Supp.  788  (holding 
that  such  wires  may  be  removed  by 
the  department  of  public  works  as 
well  as  by  the  board  of  health). 

24.  New  Orleans  Gaslight  Co.  v. 
Hart,  40  La.  Ann.  474,  4  So.  215,  8 
Am.  St.  R.  544  (holding  that  a 
municipality  may,  in  the  exercise  of 
its  police  power,  remove  lamp  posts 
which  have  been  erected  by  a  gas  com- 
pany only  empowered  to  lay  ga3 
mains) . 

25.  Kelly  v.  New  York,  6  Misc.  R. 
(N.  Y.)  516,  56  N.  Y.  St.  R.  845,  27 
N.  Y.  Supp.  164  (holding  such  power 
to  be  vested  in  the  commissioner  of 
public  works). 

26.  Lawton  v.  Steele,  119  N.  Y. 
227,  29  N.  Y.  St.  R.  581,  23  N.  E. 
878,  7  L.  R.  A.  134,  41  Alb.  L.  J. 
348  (wherein  it  is  declared  that 
where  a  public  nuisance  consists  in 
the  location  or  use  of  tangible  prop- 
erty so  as   to  interfere  with   or  ob- 


536 


Remedies  Continued — Right  to  Abate. 


372 


electric  lighting  appliances  in  certain  streets  reserved  the  power 
to  the  city  to  revoke  such  license  at  will  and  to  demand  the  re- 
moval of  such  appliances,  it  was  decided  that  upon  revocation  of 
the  license  and  failure  of  the  one  maintaining  the  appliances  to 
remove  them  after  notice  the  city  authorities  could  summarily  re- 
move the  same  as  they  thus  became  nuisances  per  se.21  And  a  code 
provision  authorizing  a.  municipality  to  abate  a  liquor  nuisance  by 
the  closing  of  the  building  in  which  it  is  maintained  "  as  against 
the  use  or  occupation  of  the  same  for  saloon  purposes,"  has  been 
held  to  confer  power  upon  the  municipality  to  so  close  a  building 
used  for  the  purposes  of  a  brewery.28  It  has,  however,  been  de- 
termined that,  though  it  is  provided  by  ordinance  that  all  intoxi- 
cating liquors  kept  within  the  town  limits  for  the  purpose  of  being 
sold  or  given  away  to  be  drunk  within  said  town  are  a  nuisance 
which  the  police  officers  are  directed  to  abate  by  removing  such 
liquors  beyond  the  town  limits,  such  officers  will  not  be  justified 
in  seizing  and  carrying  away  liquors  until  it  has  been  judicially 
determined  that  there  has  been  a  violation  of  the  ordinance.29 


struct  a  public  right  or  regulation  the 
legislature  may  authorize  its  sum- 
mary abatement  by  executive  agencies 
without  resort  to  judicial  proceed- 
ings). 

27.  Coverdale  v.  Edwards,  155  Ind. 
374,  58  N.  E.  495. 

28.  The  court  here  declared  that 
"  The  words  'saloon  purposes'  as  here 
used,  mean  more  than  simply  a  place 
for  the  retail  of  intoxicating  drinks. 
The  evident  intent  of  the  legislature 
is  that  the  court  shall  order  the 
abatement  of  every  place  established 
to  be  a  nuisance,  either  by  being 
maintained  for  the  unlawful  manu- 
facturing, selling  or  keeping  of  in- 
toxicating liquors.  It  would  be  a 
manifest  disregard  of  the  legislative 
intent  to  say  that  these  nuisances 
should  not  be  abated  by  being  closed, 
as  provided  in  the  statute,  simply  be- 


cause they  are  not  generally  desig- 
nated as  'saloons.'  The  term  saloon, 
though  often  differently  applied,  as 
used  in  this  statute,  has  reference  to 
places  that  are  nuisances  by  reason 
of  the  unlawful  manufacturing,  sell- 
ing, or  keeping  for  sale  of  intoxicat- 
ing liquors."  Craig  v.  Werthmueller, 
78  Iowa,  598,  43  N.  W.  606,  per 
Given,  C.  J.,  construing  Iowa  Code,  § 
389. 

29.  It  was  said  by  the  court  in  this 
case:  "Even  if  the  power  were  con- 
ceded to  the  town,  of  seizing,  carrying 
away  and  destroying  this  man's  beer 
and  spirits,  if  kept  for  sale  to  be 
drunk  within  the  town,  as  to  which 
we  express  no  opinion,  the  question 
not  having  been  argued,  yet  it  cer- 
tainly cannot  be  denied,  that  such  a 
power  could  be  exercised  only  by  some 
judicial  instrumentality.    Even  under 


537 


§§  673,  374  Remedies  Continued — Right  to  Abate. 

§  373.  Nuisance  on  public  lands — Power  of  Congress  to  order 
abatement. — Where  the  "  enclosure  of  any  public  lands  "  is  pro- 
hibited by  act  of  Congress,  the  enclosure  of  a  part  of  such  lands 
by  a  fence  in  violation  of  the  act  will  constitute  a  nuisance  the 
abatement  of  which  may  be  ordered  by  Congress  whether  the 
lands  are  located  within  a  territory  or  State.  In  this  connection 
it  has  been  declared  by  the  United  States  Supreme  Court:  "  While 
we  do  not  undertake  to  say  that  Congress  has  the  unlimited  power 
to  legislate  against  nuisances  within  a  State,  which  it  would  have 
within  a  territory,  we  do  not  think  the  admission  of  a  territory 
as  a  State  deprives  it  of  the  power  of  legislating  for  the  protec- 
tion of  the  public  lands,  though  it  may  thereby  involve  the  exer- 
cise of  what  is  ordinarily  known  as  the  police  power,  so  long  as 
such  power  is  directed  solely  to  its  own  protection.  A  different 
rule  would  place  the  public  domain  of  the  United  States  com- 
pletely at  the  mercy  of  State  legislation."  30 

§  374.  Right  of  individual  to  summarily  abate  private  nui- 
sance.— The  right  of  an  individual  to  summarily  abate  is  also 
held  to  exist  in  the  case  of  a  private  nuisance  by  which  he  sustains 
an  injury,31  and  entry  for  the  purpose  of  abatement  is  declared 

this    ordinance,   the  beer  and   spirits  opportunity    of    being    heard    in    his 

were  not  a   nuisance  liable  to   sum-  own  defense.     Such  proceedings  are  a 

mary    destruction,    unless    they   were  violation  of  the  elementary  principles 

kept    for   sale    or   gift,    to   be   drunk  of  our  constitution  and  laws,  and  it 

within  the  town;   and   whether  they  is  unnecessary  to  enlarge  upon  this 

were   kept   for    that   purpose   was    a  topic.     A  man's  property  cannot  be 

question    which    the    owner   had   the  seized  except  for  a  violation  of  law, 

right  to  submit  to  a  court  of  justice  and  whether   he  has   been   guilty  of 

before   his    property   could    be   taken  such  violation  cannot  be  left  to  police 

away.    The  board  of  trustees  of  Eu-  officers   or   constables   to   determine." 

reka   had   no  more  power  to  author-  Darst  v.   People,   51   111.   286,  2  Am. 

ize    their    police   officers    to    perform  Rep.  301,  per  Mr.  Justice  Lawrence, 

acts  of  this  character,  than  they  had  See  State  v.  Stark,  63  Kan.  529,  66 

to    authorize    them    at    discretion    to  Pac.  243,  54  L.  R.  A.  910. 

assess  a  fine  of  fifty  dollars  upon  any  30.  Camfield  v.  United  States,  167 

man    whom    they    might    believe    to  U.  S.  518,  526,  42  L.  Ed.  260,  263,  17 

keep   spirits   for   sale,   and   seize  his  Sup.    Ct.    R.    864,    per    Mr.    Justice 

property  or  person   for  its  payment,  Brown, 

without  inquiry  before  a  court,  or  an  31.  Harvey    v.    Dewoody,    18   Ark. 

538 


Remedies  Continued — Right  to  Abate.  §  375 

to  be  justifiable.32  It  is  essential,  however,  to  entitle  one  to  abate 
a  private  nuisance  that  he  suffer  some  injury  therefrom,  as  a 
nuisance  of  this  character  can  only  be  summarily  abated  by  one 
who  is  injured  by  it.33  And  the  exercise  of  this  right  is  also 
subject  to  the  limitation  that  the  danger  must  be  imminent  in 
order  to  authorize  a  private  individual  to  take  the  execution  of 
the  law  into  his  own  hands,  for  where  there  is  time  and  opportu- 
nity for  the  interposition  of  an  adequate  legal  remedy,  which  may 
be  effectual,  the  law  will  not  justify  a  summary  resort  to  force.34 
The  nuisance  must  also  be  one  which  injures  the  individual  at  the 
time  of  its  abatement.35  The  exercise  of  the  right  to  abate  a  nui- 
sance of  this  character  may,  however,  be  barred  by  limitations.36 
But  the  abatement  of  a  nuisance  by  a  person  will  not  preclude 
him,  in  an  action  on  the  case,  from  a  recovery  of  damages  sus- 
tained prior  to  such  abatement.37  And,  on  the  other  hand,  the 
fact  that  the  nuisance  complained  of  might  have  been  abated  by 
the  plaintiff  will  not  necessarily  mitigate  the  damages  which  he 
may  recover.38 

§  375.  Same  subject — When  right  may  be  exercised. — An  in- 
dividual may  remove  an  embankment  which  creates  a  nuisance 
by  cutting  off  his  right  to  have  the  water  flow  over  his  land  in 
natural  channels  and  drains.39  And  where  the  nuisance  consists 
of  refluent  water  thrown  back  in  the  channel  of  a  stream  so  as  to 
raise  the  level  of  the  water  where  it  passes  over  a  person's  land, 
thereby  diminishing  his  water  supply,  and  such  refluence  of  water 

252 ;    Liles   v.    Cawthorne,    78    Miss.  35.  Moffett  v.  Brewer,  1  G.  Greene 

559,  29  So.  834;  Lancaster  Turnpike  (Iowa),  348. 

Co.  v.  Rogers,  2  Pa.  St.   114,  44  Am.  36.  West  v.   Louisville,  Cincinnati 

Dec.   179.  &  L.  R.  Co.,  Bush    (Ky.),  404. 

32.  Lancaster  Turnpike  Co.  v.  Rog-  37.  Gleason  v.  Gary,  4  Conn.  418. 
ers,  2  Pa.  St.  114,  44  Am.  Dec.  179.  38.  Jarvis  v.    St.   Louis,   I.    M.    & 

33.  Gates  v.  Blincoe,  2  Dana  S.  R.  Co.,  26  Mo.  App.  253  (so  holding 
(Ky. ),  158,  26  Am.  Dec.  440;  Tur-  where  the  carcass  of  a  dead  animal 
ner  v.  Lacy,  37  Or.  158,  61  Pac.  342.  was   left   on    the   premises   adjoining 

34.  Graves     v.  Shattuck,  35  N.  H.  those  of  the  plaintiff). 

257,  69  Am.  Dec.  536.  39.  Overton  v.  Sawyer,  1  Jones  L. 

(S.  C.)  308,  62  Am.  Dec.  170. 

539 


§  375  Remedies  Continued — Eight  to  Abate. 

is  caused  by  a  dam  or  obstruction  made  by  the  inferior  proprietor 
it  has  been  decided  that  the  person  sustaining  such  injury  may 
of  his  own  authority  enter  upon  the  land  of  such  inferior  pro- 
prietor and  remove  so  much  of  the  dam  or  other  obstruction  as 
causes  the  refluent  water.40     So,  again,  in  another  case,  it  is  de- 
cided that  a  riparian  proprietor,  upon  whose  lands  the  water  is 
thrown  back,  or  its  level  raised  without  overflowing  the  banks  of 
the  stream,  by  a  dam  erected  below  him,  has  a  right  to  abate  the 
nuisance.     The  proper  mode  of  abating  the  nuisance  in  such  case 
is  declared  to  be  by  lowering  the  level  of  the  dam,  if  there  be  a 
prescriptive  right,  to  the  height  authorized  by  such  prescription, 
or,  in  the  absence  of  any  prescription,  to  such  a  height  as  will  stop 
the  refluence  of  the  water  at  his  boundary  line.     He  has,  how- 
ever, no  right  to  divert  the  water  from  the  stream  to  fie  injury  of 
the  proprietor  below  him,  by  cutting  a  ditch  on  his  own  land.41 
So  where  a  dam  is  erected  for  the  purpose  of  turning  water  into  a 
mill  race  and  conducting  it  to  a  mill  and  such  dam  is  injurious 
to  the  use  of  mining  property  above  the  dam  by  flooding  the  ground 
and  preventing  the  outlet  to  the  tailings  from  such  property,  such 
dam  may,  after  notice,  be  removed  in  a  peaceable  manner  and 
abated  as  a  nuisance  by  the  upper  proprietors  if  they  were  first 
in  the  appropriation  of  the  water  for  mining  purposes.     And  they 
will  not  be  liable  in  damages  for  such  removal  where  the  statute 
of  the  State  prescribes  a  remedy  but  does  not  take  away  the  com- 
mon law  remedy  in  the  abatement  of  nuisances  not  embraced  by 
siuch  statute.42     And  in  a  plea  of  justification  or  excuse  for  an 
entry  to  abate  a  nuisance  caused  by  the  flowing  of  certain  land  by 
the  plaintiff's  dam  it  has  been  held  sufficient  to  allege  possession  of 
an  undivided  moiety  of  such  land  without  stating  more  particu- 
larly what  title  the  defendant  had,  it  being  declared  that  the  pos- 
session thus  alleged  must  be  taken  to  be  a  lawful  possession  and 
that  it  would  seem  that  the  defendant  would  have  the  right  to 
abate  although  his  possession  was  only  for  a  term.43     In  the  exer- 

40.  Liles   v.    Cawthorne,  78   Miss.  42.  Stiles  &  Davis  v.  Laird,  5  Cal. 
559.  564.  29  So.  834.                                      121,  63  Am.  Den.  110. 

41.  Wright  &  Rice  v.  Moore,  38  43.  Great  Falls  Co.  v.  Worster,  15 
Ala.  594,  82  Am.  Dec.  731.                       N.  H.  412. 

540 


Remedies  Continued — Right  to  Abate.  §  JIG 

cise  of  this  right  it  has  also  been  decided  that  an  individual  whose 
property  is  imperilled  by  a  moving  building  has  the  right  to  use 
whatever  force  is  necessary  to  protect  that  property  from  injury.44 
And  where  a  boat  house  built  in  a  river  at  the  foot  of  a  public 
street,  in  such  adjacency  to  another's  premises  as  to  destroy  a  pas- 
sage desired  by  him  for  ingress  and  egress  constituted  a  nuisance 
it  was  decided  that  the  latter  after  notice  to  the  former  and  his 
refusal  to  remove  it  was  justified  in  abating  it  so  far  as  was  neces- 
sary to  secure  to  himself  the  right  of  way,  the  same  being  accomp- 
lished without  breach  of  the  peace.45  And  the  branches  of  trees 
may  constitute  a  nuisance  where  they  overhang  the  premises  of 
another,  but  only  so  far  as  they  extend  over  such  premises,  and 
it  has  been  decided  that  the  nuisance  may  be  abated  to  that  ex- 
tent. No  right,  however,  exists  to  cut  down  the  trees  or  to  re- 
move any  more  of  the  branches  than  so  overhangs.46 

§  376.  Limitations  on  right  to  abate, — One  who  destroys  or 
injures  private  property  or  interfers  with  private  rights  in  the 
abatement  of  an  alleged  nuisance,  unless  his  act  is  authorized  by 
the  judgment  or  order  of  a  court  having  jurisdiction,  acts  at  his 
peril,  and  when  his  act  is  challenged  in  a  regular  judicial  tribunal 
he  will  be  liable  therefor  unless  he  can  justify  his  conduct  by 

44.  Graves  v.  Shattuck,  35  N.  H.  the  stream  in  Grand  river,  and  the 
257,  69  Am.  Dec.  536.  boat-house    obstructed    his    entrance 

45.  People  v.  Severance,  125  Mich.  thereon.  The  court  should  have  di- 
556,  84  N.  W.  1089,  7  Det.  Leg.  N.  rected  the  jury  that  the  building, 
650  in  which  the  court  said :  "  There  standing  at  the  foot  of  this  public 
seems  to  be  no  dispute  but  that  the  thoroughfare,  though  in  the  waters 
building,  standing  as  it  did,  destroyed  of  Grand  river,  being  so  near  to  re- 
the  pasage  which  the  respondent  had  spondent's  premises  that  it  shut  off 
the  right  to  use  for  ingress  and  his  ingress  and  egress,  was  a  nuisance 
egress  to  his  premises  from  the  high-  in  fact.  When  Mr.  Brackett  refused 
way  in  front  of  his  premises.  The  to  move  the  boat-house  after  notice, 
mere  fact  that  the  boat-house  stood  the  respondent  had  the  right  to  abate 
in  the  waters  of  Grand  river,  instead  the  nuisance,  and  the  jury  should 
of  upon  the  land  on  Lenawee  street  have  been  so  instructed,"  per  Long,  J. 
gave  Mr.  Brackett  no  right  to  have  46.  Grandona  v.  Lovdal,  70  Cal. 
it  continued  there.     The  respondent's  161. 

premises    extended   to   the  thread  of 

541 


§  376  Remedies  Continued — Right  to  Abate. 

showing  that  the  thing  abated  was  in  fact  a  nuisance.  This  rule 
is  said  to  have  the  sanction  of  public  policy  and  to  be  founded 
upon  fundamental  constitutional  principles.4'  Where  a  nuisance 
in  fact  exists  an  individual  is  authorized  to  take  such  steps  as  are 
reasonably  necessary  to  free  himself  from  the  danger,48  and  in 
the  removal  or  abatement  of  a  nuisance,  he  is  only  liable  to  the 
owner  of  property  affected  for  a  wanton  or  unnecessary  injury.49 
On  the  other  hand  he  is  obligated  to  use  reasonable  care  to  avoid 
any  unnecessary  injury  to  the  property  or  person  of  another. M 
He  must  proceed  in  a  reasonable  manner  in  the  abatement  of  a 
nuisance,51  and  no  more  injury  must  be  done  to  property  than  is 
necessary  to  effect  the  desired  object.52  If  any  unnecessary  injury 
is  inflicted  he  will  be  liable  in  damages  to  the  owner  of  the  prop- 
erty therefor.53  As  is  said  in  a  case  in  Iowa :  "  That  a  person  at 
common  law  has  a  right  to  abate  a  nuisance  can  not  be  denied. 
It  is  one  of  those  rights  which  secure  to  him  the  uninterrupted 
enjoyment  of  his  person  and  property.  When  properly  exercised, 
it  may  ba  as  essential  to  his  happiness  as  the  right  of  self  defense. 
But  like  other  summary  rights  of  this  nature,  it  is  confined  within 

47.  People,  Copcutt,  v.  Yonkers  be  considered  in  determining  the 
Board  of  Health,  140  N.  Y.  1,  35  N.       question). 

E.  320,  55  N.  Y.  St.  R.  416,  23  L.  R.  50.  Calef  v.   Thomas,  81    111.   478. 

A.   481,   44  Am.   &  Eng.    Corp.   Cas.  51.  Great  Falls  Co.  v.  Worster,  15 

318,   affirming   71    Hun    (N.   Y.),   84,  N.  H.  412. 

54  N.  Y.  St.  R.  317,  24  N.  Y.  Supp.  52.  State  v.   Moffett,   1   G.   Greene 

629.  See,  also,  Tissot  v.  Great  South-  (Iowa),   247;      Gates    v.    Blincoe,    2 

ern  Telephone  &  Teleg.   Co.,    39   La.  Dana    (Ky.),  158,  26  Am.  Dec.  440; 

Ann.  996,   3  So.   261,  4  Am.   St.   R.  Shepard  v.  People,  40  Mich.  487 ;  Har- 

248.  rower   v.   Ritson,    37    Barb.    (X.    Y. ) 

48.  McKeesport  Sawmill  Co.  v.  301;  Turner  v.  Lacy,  37  Or.  158,  61 
Pennsylvania  Co.,  122  Fed.  184  (so  Pac.  342.  In  exercising  the  common 
holding  in  the  case  of  a  coal  barge  law  right  of  abating  a  nuisance,  the 
which  slipped  from  its  moorings  and  party  should  go  no  further  than  ia 
lodged  against  a  railroad  bridge,  en-  absolutely  necessary  and  should  com- 
dangering  the  safety  of  the  struct-  mit  the  least  practicable  injury  in  ac- 
ure)  complishing    the    object.      Moffett    v. 

49.  City  of  Indianapolis  v.  Miller,  Brewer,  1  G.  Greene    (Iowa),  348. 

27   Ind.   394    (holding  that  the  kind  53.  Gates     v.     Blincoe,     2     Dana 

of  propertly  constituting  the  nuisance       (Ky.),  158,  26  Am.  Dec.  440. 
and  the  attending  circumstances  must 

542 


Remedies  Continued — Right  to  Abate.  §  377 

certain  limits.  No  more  injury  to  the  property  of  another  must 
be  inflicted  than  is  absolutely  necessary  to  accomplish  the  object. 
A  salutary  check  is  thrown  around  an  improper  exercise  of  this 
right,  as  the  individual  is  always  under  the  peril  of  being  deemed 
a  trespasser,  unless  the  existence  of  the  nuisance  is  established. 
Thus,  while  a  person  can  be  the  judge,  in  the  first  instance,  as  to 
the  existence  of  the  nuisance,  if  it  should  turn  out  otherwise  he  is 
responsible,  and  can  be  made  to  answer  to  the  party  injured,  and 
may  subject  himself  to  a  criminal  prosecution."  54  In  exercising 
the  riffht,  however,  to  abate  a  nuisance,  a  person  is  not  obligated 

«  *™  i  i  55 

to  do  it  in  the  manner  most  convenient  for  the  other  party. 

8  377.  Same  subject  continued — Buildings  and  structures. — 
Where  a  nuisance  consists  in  the  use  of  a  building  and  not  in  the 
building  itself,  the  destruction  of  the  building  will  not  be  justi- 
fied, the  remedy  in  that  case  being  to  stop  such  use,56  as  the  de- 
struction of  property  which  can  be  used  in  a  lawful  and  proper 
manner  is  not  authorized  by  the  common  law  power  to  abate  nui- 
sances.57 So  in  a  case  in  Illinois  this  rule  was  followed  in  an 
action  of  trespass  to  recover  damages  for  breaking  and  entering 
a  storehouse  and  for  tearing  down  and  destroying  the  same  and  for 
taking  personal  property  from  the  house  and  destroying  it.  The 
defendants  attempted  to  justify  their  act  by  setting  up  that  the 
house  was  a  disorderly  one  by  reason  of  the  fact  that  liquors  were 
kept  there  for  sale  without  a  license,  and  that  persons  of  bad 
repute  assembled  there,  thus  causing  great  annoyance  to  them  and 
creating  a  public  nuisance.  The  court  said  in  its  opinion :  "  We 
hazard  nothing  in  saying  that  no  adjudged  case  can  be  found  that 
has  held  that  the  facts  set  up  in  this  plea,  or  the  evidence  intro- 
duced under  it,  constitutes  a  defense  for  the  destruction  of  such 

54.  State     v.     Moffett,     1     Greene      holding  where  the  nuisance  consisted 
(Iowa),  247,  249,  per  Kenney,  J.  in  the  use  of  a  barn  and  not  in  the 

55.  Great  Falls  Co.  v.  Worster,  15       barn  itself). 

N.  H.  412.  57-  Chicago  v.  Union  Stockyards  & 

'    56.  Nazeworthy  v.  Sullivan,  55  111.  T.  Co.,  164  111.  224,  45  N.  E.  430,  35 

App.   48;   Barclay  v.   Commonwealth,  L.  R.  A.  281. 
25  Pa.  St.  503,  64  Am.  Dec.  715   (so 

543 


§  377  Remedies  Continued — Right  to  Abate. 

property.  A  few  individuals,  or  even  a  large  portion  of  the  com- 
munity, have  no  power  to  take  the  law  into  their  own  hands,  and, 
in  a  summary  way,  enforce  the  criminal  laws  of  the  State.  In 
doing  so  the  law  is  violated,  and  peace  and  good  order  of  society 
is  endangered,  and  riot  and  bloodshed  is  invited.  In  fact,  those 
who  are  so  anxious  to  thus  preserve  the  morals  and  good  order  of 
society,  do  not  reflect  that,  in  doing  so,  they  are  themselves  vio- 
lating the  criminal  code,  and  rendering  themselves  liable  to  in- 
dictment. When  men  who  profess  to  be  moral,  and  have  stand- 
ing in  society,  resort  to  such  violent  and  unlawful  acts,  they  must 
expect  their  example  will  not  be  lost  on  the  ignorant,  vicious  and 
corrupt  portion  of  society.  Their  natures  need  restraint,  and  not 
prompting  to  acts  of  violence ;  and  when  we  see  respectable  per- 
sons thus  violate  the  law  and  render  themselves  liable  to  be  pun- 
ished criminally,  they  need  not  be  surprised  if  crime  of  a  more 
serious  character  shall  become  common  in  that  community.  It 
may  be  that  public  sentiment  can  be  so  perverted  as  to  render  it 
impossible  to  punish  persons  engaged  in  acts  like  the  present  case, 
but  when  the  law  shall  be  so  far  broken  down  that  such  wrongs 
may  be  perpetrated  with  impunity,  such  persons  have  no  right  to 
complain  if  they  shall  find  themselves  without  redress,  when  their 
own  rights  are  invaded,  civilly  or  criminally."  58  So  it  has  been 
decided  that  where  a  building  is  occupied  as  a  house  of  ill-fame, 
and  the  nuisance  is  caused  by  such  occupation,  individuals  have 
no  right  to  abate  the  nuisance  by  demolishing  the  building.59  And 
it  has  also  been  decided  that  where  the  removal  of  a  structure  is  not 
necessary  to  abate  a  nuisance  its  restoration  may  be  enforced.60 

58.  Earp  v.  Lee,  71  111.  193,  195,  council   by   ordinance  and   resolution 
per  Mr.  Justice  Walker.  to    demolish    a    house   occupied    as   a 

59.  Welch     v.     Stowell,     2     Doug.  house   of   ill   fame  and   adjudged   by 
(Mich.)    332,  wherein   it   is   also   de-  such    council    to    be    a    common    nui- 

cided  that  a  statute  empowering  the  sance.    As  to  right  of  municipality  to 

common  council  of  a  city  "to  make  all  destroy    buildings,    see     §§     349-351. 

such  by-laws  and  ordinances  as  may  herein.  As  to  power  of  municipality  to 

be  deemed  expedient  for  the  purpose  summarily    abate    nuisances,    see    §§ 

of  preventing  and  suppressing  houses  345-348  ,herein. 

of  ill  fame  within  the  limits  of  the  60.  Morrison     v.     Marquardt,     24 

city"  does  not  authorize  the  common  Iowa,  35,  92  Am.  Dec.  444. 

544 


Remedies  Continued — Right  to  Abate.  §  378 

§  378.   Same  subject  continued — Other  instances. — If  a  per- 
son has  a  right  to  use  a  drain  for  some  purposes  and  to  some  ex- 
tent, an  abuse  of  that  right  does  not  deprive  him  of  it.     In  such 
a  case  another   psrson  who  feels  himself  aggrieved  should  not 
totally  destroy  the  drain  and  thus  strike  a  summary  blow  against 
both  individual  and   public  privilege.61       And  if  a  milldam  is 
erected  so  high  as  to  flow  the  water  back  upon  a  dam  above  it, 
under  circumstances  which  might  justify  the  injured  party  in 
abating  it  by  his  own  acts,  he  must  confine  his  operations  to  the 
dam  itself  and  to  such  portions  of  it  as  caused  the  injury.62     So 
where  a  nuisance  is  caused  by  the  pollution  of  a  pond  of  water, 
an  individual  who  is  injured  thereby  cannot  destroy  the  pond  by 
filling  it,  but  can  only  abate  the  cause  which  renders  the  water 
impure.63     So  where  the  laying  of  railroad  tracks  through  a  city 
and  transportation  of  freight  over  such  tracks  is  authorized  by  law 
a  municipality,  though  empowered  to  abate  nuisances,  has  no  au- 
thority to  remove  such  tracks,  thereby  destroying  the  value  of  the 
road,  for  the  purpose  of  abating  a  nuisance  created  by  the  trans- 
portation through  the  city  of  live  stock  and  substances  which  are 
injurious  to  health.64     And  where  a  franchise  was  granted  to  a 
company  for  the  operation  of  a  street  railway  by  cable  it  was  de- 
cided that  a  railway  adapted  only  to  use  by  horses  was  not  a  nui- 
sance which  could  be  abated  by  the  municipality,  but  that  the 
proper  remedy  was  for  the  city  to  take  measures  to  compel  the 
operation  of  the  road  by  cable.65     So,  again,  it  has  been  decided 

61.  Masonic  Association  v.  Harris,  1072.  The  court  here  said:  "The 
79  Me.  250,  9  Atl.  937.  mere  fact  that  the  grantee  of  a  fran- 

62.  Moffett  v.  Brewer,  1  G.  Greene  chise  to  lay  and  maintain  a  cable  rail- 
(Iowa),   348.  way  should  lay   down    a   street   rail- 

63.  Finley  v.  Herschey,  41  Iowa,  way  not  adapted  to  the  use  of  a  cable, 
389  (so  holding  where  the  nuisance  but  only  adapted  to  use  by  means  of 
consisted  of  the  deposit  in  a  pond  horses,  would  not  constitute  the 
of  offal  from  a  slaughter  house).  horse  railway  a  nuisance  which  could 

64.  Chicago  v.  Union  Stockyards  &  be  abated  by  the  municipal  corpora- 
T.  Co.,  164  111.  224,  45  N.  E.  430,  35  tion  at  its  pleasure.  In  such  a  case 
L.  R.  A.  281.  the  only  proper  course  would  be  for 

65.  Spokane  Street  R.  Co.  v.  the  city  to  take  such  proceedings  as 
Spokane  Falls,  6  Wash.  521,  33  Pac.      would  result  in  compelling  the  oper- 

545 


§§  379,  380  Remedies  Continued — Right  to  Abate. 

that  the  destruction  of  a  private  railroad  over  a  private  way  is  nor 
justified  by  the  fact  that  it  is  negligently  operated;  that  the 
streets  are  obstructed  by  cars  which  are  allowed  to  stand,  and  that 
rubbish  and  waste  is  allowed  to  accumulate  along  the  way  of  such 
railroad.66  And  in  the  case  of  a  nuisance  affecting  the  highway, 
such  as  electric  light  poles,  it  is  held  that  an  individual  can  inter- 
fere with  them  only  so  far  as  it  is  necessary  to  the  exercise  of  his 
right  in  passing  along  the  highway.67 

§  379.   Right  to  summarily  abate  as  affected  by  statute. — A 

statute  authorizing  commissioners  of  highways  to  order  the  re- 
moval of  fences  by  which  highways  have  been  encroached  upon 
does  not  abrogate  the  common  law  remedy  of  the  abatement  of  a 
nuisance  by  the  mere  act  of  individuals.  The  remedy  so  given 
by  statute  is  held  to  be  merely  cumulative.68  And  the  right  of 
abating  a  public  nuisance  is  not  affected  by  a  statute  imposing  a 
penalty  for  the  offense,  unless  negative  words  are  added,  evincing 
an  intent  to  exclude  common  law  remedies.69  And  a  statute  con- 
ferring equitable  jurisdiction  upon  a  court  in  cases  of  nuisance 
does  not  extinguish  the  right  of  a  party  who  has  been  injured  by 
a  nuisance  to  abate  the  same.70 

§  380.  Right  not  affected  by  constitutional  provisions  for 
protection  of  property. — The  exercise  of  right  existing  at  common 
law  to  summarily  abate  a  nuisance  is  not  in  conflict  with  a  consti- 
tutional provision  protecting  rights  in  property.71     So  it  is  said 

ation  of  the  road  by  cable  instead  of  69.  Remvick  v.  Harris.  7  Hill   (N. 

by  horses,"  per  Stiles,  J.  Y.),  575;   see  State  v.  Moffett,  1   G. 

66.  Corey  v.  Borough  of  Edgewood,       Greene   (Iowa),  247. 

18  Pa.  Super.  Ct.  216.  70.  Great  Falls  Co.  v.  Worster,  15 

67.  Electric     Construction     Co.    v.       N.  H.  412. 

HefFerman,  34  N.  Y.  St.  R.  436,  12  N.  71.  Nazeworthy  v.  Sullivan,  55  111. 
Y.  Supp.  336,  58  Hun  (N.  Y.),  605  App.  48;  Cartwright  v.  City  of  Co- 
mem,  hoes,   39   App.    Div.    (N.   Y.)    69,    56 

68.  Neal  v.  Gilmore  (Mich.,  1905),  N.    Y.    Supp.    731,    affirmed    in    165 
104  N.   W.   609;   Wetmore  v.  Tracy,  N.  Y.  631,  59  N.  E.    1120. 

14  Wend.    (N.  Y.)    250,  28  Am.  Dec.  It  is  not  a  taking  of  property 

525.  without  due  process  of  law    (Coe  v. 

546 


Remedies  Continued — Right  to  Abate.  §  380 

in  a  case  in  New  Jersey  that :  "  Such  destruction  for  the  public 
safety  or  health,  '  is  not  a  taking  of  private  property  for  public 
use,  without  compensation  or  due  process  of  law,  in  the  sense  of 
the  constitution.  It  is  simply  the  prevention  of  its  noxious  and 
unlawful  use,  and  depends  upon  the  principles  that  every  man 
must  so  use  his  property  as  not  to  injure  his  neighbor,  and  that 
the  safety  of  the  public  is  the  paramount  law.  These  principles 
are  legal  maxims  or  axioms'  essential  to  the  existence  of  regulated 
society.  Written  constitutions  presuppose  them,  are  subordinate 
to  them,  and  cannot  set  them  aside.  They  underlie  and  justify 
what  is  termed  the  police  power  of  the  State.  By  virtue  of  that 
power,  numerous  and  onerous  restrictions  and  burdens  are  im- 
posed upon  persons  and  property  which,  for  other  purposes  or  on 
other  grounds,  would  be  prohibited  by  the  constitutional  limita- 
tions sought  to  be  applied  in  this  suit."  72  So  it  is  declared  in  a 
case  in  New  York  that  where  a  public  nuisance  consists  in  the 
location  or  use  of  tangible  personal  property  so  as  to  interfere  with 
or  obstruct  a  public  right  or  regulation  the  legislature  may  au- 
thorize its  summary  abatement  by  executive  agencies  without  re- 
sort to  judicial  proceedings,  and  any  injury  to  or  destruction  of 
the  property  necessarily  incident  to  the  exercise  of  the  summary 
jurisdiction  interferes  with  no  legal  right  of  the  owner,  and  is  not 
in  violation  of  a  constitutional  provision  against  depriving  the 
owner  of  property  without  due  process  of  law.73 

Schultz,  2  Abb.  Prac.  U.  S.  [N.  Y.]  in  tbe  case  of  fisb  nets  set  in  waters 

193)     or    without    the    judgment    of  in  violation  of  law).     See  also  State 

one's  peers  (Weil  v.  Schultz,  33  How.  v.   Snover,  42  N.   J.  L.  341;    Rea  v. 

Prac.    TN\  Y.]    7).  Hampton,  101  N.  C.  51. 

72.  Manhattan  Mfg.  &  Fert.  Co.  v.  It  is  a  proper  exercise  of  the 
Van  Keuren,  23  N.  J.  Eq.  251,  255,  police  power,  where  property  has 
per  the  Vice-Chancellor,  citing  Cooley  become  a  public  nuisance,  or  has  an 
on  Const.  Lim.  572;  Potter's  Dwarris  unlawful  existence,  or  is  noxious  to 
on  Statutes,  444.  the  public  health,  public  morals,   or 

73.  Lawton  v.  Steele,  119  N.  Y.  public  safety,  to  destroy  such  prop- 
227,  23  N.  E.  878,  29  N.  Y.  St.  R.  erty  without  compensation  to  the 
581,  7  L.  R.  A.  134,  affirmed  in  152  owner.  Houston  v.  State,  98  Wis. 
U.  S.  133,  38  L.  Ed.  385    (so  holding  481,  74  N.  W.  Ill,  42  L.  R.  A.  111. 


547 


§  o^L  Remedies  Continued — Eight  to  Abate. 

§  381.  Costs  of  abating  nuisance. — In  the  exercise  of  the  police 
power  possessed  by  the  State  it  may  by  statute  provide  that  the 
costs  of  abating  a  nuisance  shall  be  assessed  against  the  property 
of  the  one  by  whom  it  is  maintained.  So  where  it  was  provided 
by  statute  that  a  city  might  drain  or  grade  or  fill  up  lots  to  prevent 
stagnant  water  or  banks  of  earth  or  other  nuisance  and  that  the 
costs  thereof  should  be  assessed  against  the  lots  so  filled  it  has 
been  decided  that  such  statute  is  not  a  violation  of  a  constitutional 
provision  relating  to  special  taxation  for  local  improvements.  It 
was,  however,  decided  in  this  case  that  where  notice  to  the  owner 
to  abate  was  required  and  none  was  given  that  an  assessment 
against  the  property  was  void  and  would  be  cancelled  as  a  cloud  on 
the  title.74  The  court  said  in  this  connection :  "  Under  the  sec- 
tion of  the  charter  above  quoted  it  is  quite  clear  that  the  power  of 
the  city  to  fill  or  grade  the  lots  in  question  at  the  owner's  expense 
depended  upon  a  previous  demand  having  been  made  upon  him  to 
do  the  work  and  a  refusal  on  his  part  to  do  it.  Demand  and  re- 
fusal were  indispensible  and  prerequisite  to  the  authority  of  the 
city  to  improve  the  property  and  charge  it  with  the  expense  of  the 
improvement.  The  legislature  having  prescribed  the  terms  on 
which  the  city  was  authorized  to  make  assessments  of  this  charac- 
ter, the  power  to  make  them  could  be  lawfully  exercised,  only, 
where  there  had  been  a  substantial  compliance  with  the  statute. 
This  proposition  is  well  established  by  authority."  75 

74.  Horbach  v.  City  of  Omaha,  54       connection,    Los    Angeles    County    v. 
Neb.   83,  74  N.  W.  434.  Spencer,  126  Cal.  670,  59  Pac.  202. 

75.  Per  Sullivan,  J.     See  in  thia 


548 


CHAPTER  XVIII. 

Remedies  Continued — Subject  Matter  of  Remedy. 

SECTION  382.  Dangerous  nuisances  generally. 

383.  Same  subject — Negligence. 

384.  Dangerous     nuisances     continued — Gunpowder,     dynamite     and 

other  explosives. 

385.  Same  subject — Rules  continued — Instances. 

386.  Same  subject  continued. 

387.  Dangerous   nuisances   continued — Petroleum,  gasoline,  naphtha, 

crude  oils,  etc. 

388.  Same  subject  continued. 

389.  Dangerous  nuisances  continued — Spring  guns. 

390.  Baseball — Ball   park. 

391.  Bawdy  house  or  house  of  ill-repute. 

392.  Bees. 

393.  Cemeteries,  burial  grounds. 

394.  Cooking  and  cooking  ranges. 

395.  Gambling  house. 

396.  Deposits  on  land. — Garbage,  ashes,  offensive,  etc.,  matter. 

397.  Hospitals,  pest-houses,  infectious  and  contagious  diseases. 

398.  Steam  engines  and  boilers. 

399.  Liquor  nuisance. — Civil  and  criminal  actions  or  remedies. 

400.  Same  subject. 

401.  Same  subject. 

402.  Common  scold. 

403.  Fences   and   structures. — Generally. 

404.  Same  subject. — Continued. 

405.  Water  closets,  privies,  vaults  and  outhouses. 

406.  Same  subject. — Continued. 

407.  Dams. — Civil  and  criminal  remedies. 

408.  Private  way,  right  of  way. 

409.  Other  special  instances  of  what  is  subject  matter  of  remedy. 

410.  Same  subject. — Continued. 

411.  Other  special  instances  of  what  is  not  subject  matter  of  remedy. 

412.  Same  subject. — Continued. 

413.  Other  special  instances  of  when  and  for  what  indictment  lies. 

414.  Same  subject. — Continued. 

'549 


§  382 


Remedies  Continued — Subject  Matter. 


§  382.  Dangerous  nuisances  generally. — A  well  known  Eng- 
lish case  is  frequently  cited  to  the  proposition  that  one  who  for 
his  own  purpose  brings  upon  his  land  and  collects  and  keeps  there 
anything  liable  to  do  mischief  if  it  escapes,  must  keep  it  at  his 
peril.  If  the  owner  of  land  uses  it  for  any  purpose  which  from  its 
character  may  be  called  non-natural  user,  such  as,  for  example,  the 
introduction  onto  the  land  of  something  which  in  the  natural  con- 
dition of  the  land  is  not  upon  it,  he  does  so  at  his  peril,  and  is 
liable  if  sensible  damage  results  to  his  neighbor's  land,  or  if  the  lat- 
ter's  legitimate  enjoyment  of  his  land  is  thereby  materially  cur- 
tailed.1  Substantially  the  same  doctrine  is  asserted  in  a  Kentucky 


1.  Fletcher  v.  Rylauds,  L.  R.  1 
Exch.  265,  affd.  Rylands  v.  Fletcher. 
L.  R.  3  H.  L.  Cas.  330,  340;  quali- 
fied, Cumberland  Teleph.  &  Teleg.  Co. 
v.  United  Elect.  R.  Co.,  42  Fed.  280, 
3  Am.  Elect.  Cas.#417;  cited  Walsh 
v.  Hayes,  72  Conn.  397,  44  Atl.  725, 
7  Am.  Neg.  Rep.  24  (but  declared  not 
applicable  if  it  be  law)  ;  considered, 
Cahill  v.  Eastman,  18  Minn.  324,  Gilf. 
292,  306-308,  310,  10  Am.  Rep.  184; 
explained  and  modified  Murphy  v. 
Gillum,  73  Mo.  App.  490;  doubted, 
Garland  v.  Towne,  55  N.  H.  55,  57, 
60,  20  Am.  Rep.  164  (where  Ladd,  J., 
say- :  "  I  am  not  aware  that  any 
court  on  this  side  of  the  Atlantic  has 
gone  as  far  as  this")  ;  criticised 
Brown  v.  Collins,  53  N.  H.  442,  16 
Am.  Rep.  372;  distinguished  and  crit- 
icised, Beach  v.  Stirling  Iron  &  Zinc 
Co..  54  N.  J.  Eq.  75;  criticised,  Mar- 
shall v.  Wellwood,  38  N.  J.  L.  339, 
343,  345  (as  a  broad  statement 
which  cannot  be  said  to  be  the  rule  in 
this  country  irrespective  of  the  ques- 
tions of  negligence  or  want  of  care  or 
skill)  ;  distinguished  Losee  v.  Bu- 
chanan, 51  N.  Y.  476,  10  Am.  Rep. 
623  ( where  the  court  says :  "  It  is 
sullicient,   however,   to    say   that   the 


law  as  laid  down  in  those  cases  [in- 
cluding Smith  v.  Fletcher,  20  W.  R. 
987]  is  in  direct  conflict  with  the 
law  as  settled  in  this  country."  This 
New  York  decision  was  declared  to  be 
controlling  in  Cosulich  v.  The 
Standard  Oil  Co.  of  N.  Y.,  122  N.  Y. 
118,  124,  33  N.  Y.  St.  R.  287,  25  N. 
E.  259,  19  Am.  St.  Rep.  475)  ;  distin- 
guished Simmons  v.  Paterson,  58 
N.  J.  Eq.  1,  42  Atl.  752; 
cited,  George  v.  Cypress  Hills 
Cemetery,  32  App.  Div.  281,  14  W.  R. 
799,  52  N.  Y.  Supp.  1097,  4  Am.  Neg. 
Rep.  794  (in  dissenting  opinion, 
Woodward,  J. )  ;  principle  explained, 
Cleveland  Terminal  &  Valley  Rd.  Co. 
v.  Marsh,  63  Ohio  St,  236,  58  N.  E. 
821,  9  Am.  Neg.  Rep.  177;  approved, 
Bradford  Glycerine  Co.  v.  St,  Mary  a 
Woolen  Mfg.  Co.,  60  Ohio  St.  560,  54 
N.  E.  528  (case  given  in  full  in  note 
36,  §  385,  herein)  ;  criticised,  Penn- 
sylvania Coal  Co.  v.  Sanderson,  113 
Pa.  126,  150,  152,  57  Am.  Rep.  445,  6 
Atl.  453;  considered  substantially 
overruled,  Frost  v.  Berkeley  Phos- 
phate Co.,  42  S.  C.  412,  26  L.  R.  A. 
603;  disapproved,  Klepsch  v.  Don- 
ald, 4  Wash.  439;  distinguished  Mc- 
Brvan  v.   Canadian    Pac.   R.   Co.,   29 


550 


Remedies  Continued — Subject  Mattee.  §  383 

case  and  is  applied  to  substances  above  or  below  the  ground.2  So  it 
is  held  that  one  who  creates  on  his  land  an  electric  current  for  his 
own  purposes  and  discharges  it  into  the  earth  beyond  his  control 
is  as  liable  for  damages  caused  by  it  as  he  would  if  he  had  dis- 
charged a  stream  of  water,  but  where  the  act  is  done  in  pursu- 
ance of  a  provisional  order  duly  authorized,  it  is  protected  to  the 
same  effect  as  other  nuisances  under  statutory  authority.3  And 
to  substantially  the  same  effect  a  person  is  held  liable  for  the  in- 
jury sustained  by  pollution  of  a  well  by  percolations  through  sub- 
terranean streams  of  unwholesome  matter  from  deposits  on  his 
premises.4  So  where  a  neighbor's  ice-house  is  likewise  befouled 
there  is  an  actionable  nuisance,5  and  such  percolations  into  a  cel- 
lar will  be  abated.6  So  there  exists  a  liability  for  percolations 
from  a  reservoir  where  they  injure  adjacent  lands.'  But  the 
owner  is  held  not  liable  to  trespassers  for  a  dangerous  nuisance 
maintained  upon  enclosed  premises,8  So  machinery  which  is  not  pe- 
culiarly dangerous  in  itself  if  left  unguarded  and  which  is  in  use 
in  the  prosecution  of  a  lawful  work  even  though  it  may  be  dan- 
gerous if  interfered  with  is  not  a  nuisance  and  the  employer  is 
not  liable  for  the  negligence  of  a  contractor  in  leaving  the  same 
unguarded  even  though  children  who  are  rightfully  upon  the 
premises  are  injured  thereby.9 

§  383.  Same  subject — Negligence.10 — It  has  been  held  that  it 
is  a  prerequisite  to  liability  for  an  explosion  that  there  should 

Can.  Sup.  Ct.  373 ;  see  Joyce  on  Elec-  5.  Anheuser-Busch  Brewing  Assoc. 

trie  Law,    §    509;    §§    27,       ,  herein.       v.  Peterson,   41  Neb.   897,   60  N.  W. 

2.  Kinnaird   v.    Standard   Oil    Co.,       373. 

89  Ky.  468,  11  Ky.  L.  Rep.  692,  12  6.  Perrine  v.  Taylor,  43  N.  J.  Eq. 

S.  W.  937,  7  L.  R.  A.  451,  30  Cent.  L.  128,   12  Atl.  769,  10  Cent.  Rep.  424; 

J.  267,  41  Alb.  L.  J.  227.  Fleischner  v.  Citizen's  Real  Estate  & 

3.  National   Teleph.    Co.    v.   Baker  I.  Co.,  25  Oreg.  119,  35  Pac.  174. 
(1893),  2  Ch.   186,  68  L.  T.  R.  N.  S.  7.  Wilson  v.  City  of  New  Bedford. 
283,   47  Alb.   L.   J.  411,  4   Am.  Elec.  108  Mass.  261,  11  Am.  Rep.  352. 
Cas.  327.     See  Joyce  on  Electric  Law,  8.  Hutson  v.  King,  95  Ga.  271,  22 
§  509.  S.  E.  615. 

4.  Beatrice  Gas  Co.  v.  Thomas,  41  9.  Wood  v.  The  Independent 
Neb.  662,  43  Am.  St.  Rep.  711,  2  Ohio  School  District  of  Mitchell,  44  Iowa, 
Leg.  N.  70,  30  Cent.  L.  J.  363,  59  N.  27,  31. 

\V<  925.  10.  See    §   44,  herein. 

551 


§  383         Remedies  Continued — Subject  Matter. 

have  been  negligence,11  and  that  the  keeping  of  gunpowder  in  a 
certain  place  near  a  dwelling  house  to  constitute  a  nuisance  must 
be  negligently  and  improvidently  done.12  But  it  has  also  been 
decided  that  the  question  whether  a  nuisance  exists  does  not  de- 
pend upon  the  degree  of  care  used,  since  a  nuisance  may  exist 
even  though  explosives  should  be  carefully  kept  or  stored.  Thus 
in  the  case  of  an  action  for  injuries  from  the  explosion  of  fire- 
works the  court  instructed  the  jury  to  find  for  the  defendant  "  un- 
less they  found  that  the  defendant  carelessly  and  negligently  kept 
the  gunpowder  on  his  premises  "  and  he  refused  to  charge,  at  plain- 
tiff's request,  "  that  the  power  magazine  was  dangerous  in  itself 
to  plaintiff  and  was  a.  private  nuisance,  and  defendant  wTas  liable 
to  the  plaintiff,  whether  it  was  carelessly  kept  or  not,"  and  a  ver- 
dict for  defendant  was  reversed  on  the  ground  that  the  charge 
given  was  erroneous.13  This  principle  is  also  applied  in  another 
case;  thus  the  factor  of  carlessness  or  negligence  in  keeping  ex- 
plosives is  immaterial  where  a  nuisance  exists  even  though  not 
one  per  se.u  The  last  decisions  would  seem  to  be  in  accord  with 
the  general  rule  as  to  negligence  and  care  or  want  thereof.15 

11.  Cook  v.  Anderson,  85  Ala.  99,  New  Bedford,  108  Mass.  261,  11  Am. 
4    So.    713.  Rep.  352;  Hauck  v.  Tide  Water  Pipe 

12.  People  v.  Sands,  1  Johns.  (N.  Line  Co.,  175  Pa.  366,  26  Atl.  644,  20 
Y.)  78,  3  Am.  Dec.  296.  See  Crow-  L.  R.  A.  642,  32  W.  N.  C.  45;  Wilson 
ley  v.  Rochester  Fireworks  Co.,  95  v.  Phoenix  Powder  Mfg.  Co.,  40  W. 
App.  Div.  13,  88  N.  Y.  Supp.  483;  Va.  413,  21  S.  E.  1035.  Examine 
Bradley  v.  People,  56  Barb.  (N.  Y.)  Kleebauer  v.  Western  Fuse  &  Explos- 
72;  Nelson  v.  McLellan,  31  Wash.  208.  ives  Co.,  138  Cal.  497,  60  L.  R.  A. 
71  Pac.  747.  377,  94  Am.  St.  Rep.  62,  71  Pac.  617, 

13.  Heeg  v.  Licht,  80  N.  Y.  579,  13  Am.  Xeg.  Rep.  475,  rev'g  69  Pac. 
36  Am.  Rep.  654.  246,   where  the   question  of  carrying 

14.  Lounsbury  v.  Foss,  80  Hun  (N.  on  the  business  with  care  was  a 
Y.),  296,  61  N.  Y.  St.  R.  829,  30  N.  factor;  Pritchard  v.  Edison  Illum- 
Y.  Supp.  89,  affd.  145  N.  Y.  600,  65  inating  Co.,  92  App.  Div.  178,  87  N. 
N.  Y.  St.  R.  866.  See,  also,  Hazard  Y.  Supp.  225,  affd.  179  N.  Y.  364,  72 
Powder  Co.  v.  Volger,  58  Fed.  152,  N.  E.  243 ;  Cumminge  v.  Stevenson,  76 
158,  7  C.  C.  A.  130,  136;  Laflin  &  Tex.  642,  13  S.  W.  556,  where  one  of 
Rand  Powder  Co.  v.  Tearney,  131  111.  the  factors  was  the  unprotected  man- 
322,  21  N.  E.  516,  23  N.  E.  389,  7  L.  ner  of  stowing. 

R.  A.  262,  19  Am.  St.  Rep.  34,  affg.  15.  See  §  44,  herein. 

30  111.  App.  321;    Wilson  v.  City  of 

552 


Remedies  Continued — Subject  Matter. 


§  384 


§  384.  Dangerous  nuisances  continued— Gunpowder,  dyna- 
mite and  other  explosives. — The  manufacturing,  keeping  or  stor- 
ing of  gunpowder,  dynamite  or  other  explosive  and  dangerous  sub- 
stances does  not  necessarily  constitute  a  nuisance  per  se.  That  de- 
pends upon  locality,  the  manner  of  its  keeping  or  use,  the  quantity 
and  all  the  surrounding  circumstances.16  So  gunpowder  may  be 
stored  and  used  to  manufacture  fuse,  and  it  is  not  a  nuisance 
per  se.11  But  location  may  make  the  keeping  of  gunpowder  a 
nuisance  where  injury  from  explosion  is  liable  to  occur  to  those 
residing  in  the  neighborhood,18  and  the  rule  applies  even  though 
only  plaintiff's  person  or  household  is  endangered.19  So  it  was 
declared  in  an  early  English  case  that :  "  Though  gunpowder  be 
a  necessary  thing,  and  for  the  defense  of  the  kingdom,  yet  if  it  be 
kept  in  such  a  place,  as  it  is  dangerous  to  inhabitants  or  passen- 
gers, it  will  be  a  nuisance."  20    So  not  only  is  the  location  material, 


16.  Kinney  v.  Koopman,  116  Ala. 
310,  22  So.  593,  37  L.  R.  A.  497; 
Kleebauer  v.  vVestern  Fuse  &  Explos- 
ives Co.,  138  Cal.  497,  60  L.  R.  A. 
377,  71  Pac.  617,  13  Am.  Neg.  Rep. 
475,  479-481,  94  Am.  St.  Rep.  62, 
revg.  69  Pac.  246;  Heeg  v.  Licht,  80 
N.  Y.  579,  581,  36  Am.  Rep.  654,  per 
Miller,  J.,  case  reverses  16  Hun,  257; 
Lounsbury  v.  Foss,  80  Hun,  296,  61 
N.  Y.  St.  R.  829,  30  N.  Y.  Supp. 
89;  People  v.  Sands,  1  Johns.  (N. 
Y.)  78,  3  Am.  Dec.  296;  Tuchackinsky 
v.  Lehigh  &  W.  Coal  Co.,  199  Pa. 
515,  49  Atl.  308;  Appeal  of  Dil- 
worth,  91  Pa.  247;  Appeal  of  Wier, 
74  Pa.  230;  Emory  v.  Hazard  Pow- 
der Co.,  22  S.  C.  476,  53  Am.  Rep. 
730.  See  Flynn  v.  Butler,  (Mass., 
1905),  75  N.  E.  730;  State  v.  Pag- 
gett,  8  Wash.  579,  36  Pac.  487. 

17.  Kleebauer  v.  Western  Fuse  & 
Explosives  Co.,  138  Cal.  497,  60  L. 
R.  A.  377,  71  Pac.  617,  13  Am.  Neg. 
Rep.  475,  479-481,  94  Am.  St.  Rep. 
62,  revg.  69  Pac.  246. 


18.  Heeg  v.  Licht,  80  N.  Y.  579, 
36  Am.  Rep.  654.  See  Cebulski  v. 
Hutton,  47  App.  Div.  107,  62  N.  Y. 
Supp.  166;  Reilly  v.  Erie  R.  R.  Co., 
76  N.  Y.  Supp.  620,  72  App.  Div. 
476;  Myers  v.  Malcolm,  6  Hill  (N. 
Y.),  292,  41  Am.  Dec.  744;  Appeal 
of  Wier,  74  Pa.  230. 

A  double  gunpowder  magazine 
is  a  nuisance  when  it  exists  un- 
der conditions  that  make  it  a  con- 
stant menace  to  the  safety  of  the  im- 
mediate community,  especially  when 
the  danger  of  explosion  is  increased 
by  the  proximity  of  other  dangerous 
substances  or  explosives.  Flynn  v. 
Butler   (Mass.  1905),  73  N.  E.  730. 

19.  Lailin  &  Rand  Powder  Co.  v. 
Tearney,  131  111.  322,  7  L.  R.  A.  262, 
21  X.  E.  516,  23  N.  E.  389,  19  Am.  St. 
Rep.  334,  affg.  30  111.  App.  321;  Em- 
ory v.  Hazard  Powder  Co.,  22  S.  C. 
476,  53  Am.  Rep.  730.  See,  also, 
Hazard  Powder  Co.  v.  Volger,  58  Fed. 
152,  158,  7  C.  C.  A.   130,  136. 

20.  Anonymous,     12    Mod.     *   342 


553 


§  384         Remedies  Continued — Subject  Matter. 


but  the  quantity  stored,  as  in  case  of  dynamite  is  important,21  and 
a  nuisance  exists  where  the  quantity  is  excessive  and  the  locality 
one  where  a  large  population  reside.22  And  while  it  is  held  that 
gunpowder  may  even  be  kept  in  or  near  public  places  in  large 
quantities,23  still  the  keeping  and  storing  of  explosives  near  to  rail- 
roads and  public  highways  may  constitute  a  public  nuisance.24  So 
the  proximity  to  dwellings,  the  depreciation  in  the  value  and  use 
thereof,  the  large  quantity  of  powder  kept,  the  unprotected  manner 
of  keeping,  and  the  constant  alarm  and  anxiety  occasioned  thereby 
make  a  powder  magazine  a  nuisance.25  But  the  fact  that,  con- 
trary to  anticipations,  the  value  of  property  has  depreciated  will 
not  warrant  the  issuance  of  an  injunction  in  favor  of  a  person  who 
to  benefit  his  land  has  induced  a  manufacturer  of  explosives  to 
locate  near  such  land  and  he  has  so  located  at  a  great  expense.26 


(case),  585,  per  Holt,  C.  J.  (Syllabus 
is  that  "Gunpowder  not  to  be  kept  in 
inhabited  places,"  note  to  case  is 
"See  stat.  11,  Geo.  3,  c.  35,  and  12 
Geo.    3,    c.    81"). 

As  to  gunpowder  being  a  ne- 
cessity to  industries  and  exclusion  of 
evidence  thereof,  see  Cibulski  v.  Hut- 
ton,  47  App.  Div.  107,  62  N.  Y.  Supp. 
166. 

21.  Reilly  v.  Erie  R.  R.  Co.,  76  N. 
Y.  Supp.  620,  72  App.  Div.  476. 

Whether  the  storing  of  dyna- 
mite is  a  nuisance  per  se  by  rea- 
son of  inappropriate  location  may 
be  a  question  of  fact  as  to  whether 
persons  or  property  in  proximity 
thereto  would  be  exposed  to  danger 
unavoidable  and  inherent  to  the  busi- 
ness when  properly  conducted.  Facts 
tending  to  show  that  such  business 
was  being  located  in  unnecessarily 
close  proximity  to  the  public  high- 
way frequently  travelled  by  plaintiffs 
and  their  families,  and  to  the  resi- 
dence and  other  buildings  of  plain- 
tiffs, are  proper  allegations  in  a  pe- 


tition in  an  action  to  enjoin  such 
storing  of  dynamite  as  a  nuisance. 
Remsburg  v.  Iola  Portland  Cement 
Co.    (Kan.  1906),  84   Pac.  548. 

22.  Richer  v.  Shaler,  89  App.  Div. 
300,  85  N.  Y.  Supp.  825. 

23.  Kinney  v.  Koopman,  116  Ala. 
310,  37  L.  R.  A.  497,  22  So.  593;  Peo- 
ple v.  Sands,  1  Johns.  (N.  Y.)  78,  3 
Am.   Dec.   296. 

24.  Wilson  v.  Phoenix  Powder 
Mfg.  Co.,  40  W.  Va.  413,  21  S.  E. 
1035.  See  Huntington  &  K.  Land  D. 
Co.  v.  Phoenix  Powder  Mfg.  Co.,  40 
W.  Va.  711,  21  S.  E.  1037;  Cheatem 
v.  Shearon,  1  Swan  (31  Tenn.),  213, 
55  Am.  Dec.  734;  Myers  v.  Malcolm, 
6  Hill  (N.  Y.),  292,  41  Am.  Dec. 
744. 

25.  Cumminge  v.  Stevenson,  76 
Tex.  642,  13  S.  W.  556.  See  Hazard 
Powder  Co.  v.  Volger,  58  Fed.  152, 
158,  7  C.  C.  A.  130,  136. 

26.  Huntington  &  K.  Land  D.  Co. 
v.  Phoenix  Powder  Mfg.  Co.,  40  W. 
Va.  711,  21  S.  E.  1037. 


554 


Remedies  Continued — Subject  Mattek.  §  385 

§  385.  Same  subject — Rules  continued — Instances. — Where 
the  situation  of  a  powder  magazine  and  the  character  of  the  near- 
by and  other  intervening  land  is  such  as  is  calculated  to  do  no  in- 
jury even  in  case  of  an  explosion  an  injunction  will  not  be  issued 
to  restrain  the  erection  thereof.27  So  the  character  of  the  original 
location  as  to  residence,  the  fact  that  small  quantities  only  are 
kept  of  the  explosive,  and  that  for  years  no  complaint  had  been 
made,  and  also  that  lightning  had  caused  the  explosion  are  all  fac- 
tors showing  that  a  private  nuisance  does  not  exist.28  But  where  a 
dwelling  was  built  before  a  near-by  powder  magazine  its  subse- 
quent occupation  does  not  constitute  an  assumption  of  the  risk 
consequent  upon  the  nearness  of  such  a  nuisance.29  And  no 
liability  exists  as  to  the  manufacturer  where  a  magazine  is  wil- 
fully blown  up  by  a  stranger,  and  it  is  located  in  a  suitable  place.30 
Although,  if  an  ordinance  is  violated  in  keeping  a  powder  mag- 
azine, and  such  magazine  is  so  situated  with  respect  to  a  dwell- 
ing house  that  it  is  liable  to  inflict  serious  injury  upon  person 
and  property,  it  constitutes'  a  nuisance  per  se,  but  the  liability 
is  not  solely  by  reason  of  the  statutory  prohibition  unless  such  vio- 
lation is  in  some  degree  the  cause  thereof.31  But  if  in  violation  of  a 
city  charter  different  firms,  of  which  defendant  is  one,  store  cer- 
tain explosives  or  chemicals  in  a  building  and  an  explosion  occurs 
consequent  upon  a  fire  causing  death  it  must  appear  from  the 
evidence  whose  property  first  exploded  to  ascertain  the  proximate 
cause  of  the  death.32  Again,  the  mere  possibility  of  injury  to 
near-by  residents  is  insufficient  to  warrant  restraining  the  erection 

27.  Appeal  of  Dilworth,  91  Pa.  Pac.  246.  See  second  preceding  note. 
247.  But     liable      where      explosion 

28.  Tuchackinsky  v.  Lehigh  &  W.  from  any  cause.  See,  Hazard  Pow- 
Coal  Co.,  199  Pa.  515,  49  Atl.  308.  der  Co.  v.  Volger,  58  Fed.  152,  158, 
See     second    following     note     as    to  7  C.  C.  A.  130,  132. 

cause.  31.  Laflin  &   Rand   Powder   Co.  v. 

29.  Prussak  v.  Hutton,  30  App.  Tearney,  131  111.  322,  21  N.  E.  516, 
Div.  66,  51  N.  Y.  Supp.  761.  7  L.  R.  A.  262,  23  N.  E.  389,  19  Am. 

30.  Kleebauer  v.   Western  Fuel  &  St.  Rep.  34,  aff'g  30  111.  App.  321. 
Explosive  Co.,  138  Cal.  497,  60  L.  R.  32.  Schuck  v.  Main,  79  N.  Y.  St 
A.  377,  71  Pac.  617,  13  Am.  Neg.  Rep.  R.  399,  39  Misc.  251. 

475,    94   Am.    St.    Rep.    62,    rev'g  69 


555 


§  385         Remedies  Continued — Subject  Matter. 


of  a  powder  house.33  But  a  public  nuisance  may  exist  by  reason 
of  the  discharge  by  private  persons  of  fireworks  in  a  narrow  city 
street.34  If,  however,  the  digester  in  a  pulp  mill  explodes  and 
injures  a  lessee's  employee  the  owner  is  not  liable  as  for  a  nuisance 
where  such  digester  is  not  dangerous  when  not  in  use.35  Again, 
nitroglycerine  is  a  substance  usually  recognized  as  highly  explosive 
and  dangerous,  the  storage  of  which  at  any  place  is  a  constant 
menace  to  the  property  in  that  vicinity.  And  one  who  stores  it 
on  his  own  premises  is  liable  for  injuries  caused  to  surrounding 
property  by  its  exploding,  although  he  neither  violates  any  pro- 
vision of  the  law  regulating  its  storage  nor  is  chargeable  with 
negligence  contributing  to  the  explosion.  A  right  of  action  will 
exist  in  favor  of  all  property  within  the  circle  of  danger,  and  the 
fact  that  the  property  injured  was  not  on  premises  adjacent  to 
those  on  which  the  explosive  substance  was  stored  will  not  defeat 


a  recovery/0 

33.  Dumesnil  v.  Dupont  18  B. 
Mon.  (57  Ky.)  800,  68  Am.  Dec. 
750. 

34.  Speir  v.  Brooklyn,  139  N.  Y. 
6,  54  N.  Y.  St.  R.  416,  44  Am.  &  Eng. 
Corp.  Cas.  577,  21  L.  R.  A.  641,  48 
Alb.  L.  J.  412,  36  Am.  St.  Rep.  664, 
34  N.  E.  727.  Compare,  Landan  v. 
City  of  New  York,  85  N.  Y.  Supp. 
616,  90  App.  Div.  50. 

Authorized  fireworks  exhibi- 
tion not  a  nuisance  warranting  re- 
covery for  injury  if  no  negligence. 
See,  Crowley  v.  Rochester  Fireworks 
Co.,  95  App.  Div.  13,  88  N.  Y.  Supp. 
483. 

35.  Whitmore  v.  Orono  Pulp  &  P. 
Co.,  91  Me.  297,  39  Atl.  1032,  40  L.  R. 
A.  377,  citing  numerous  cases. 

36.  Bradford  Glycerine  Co.  v.  St. 
Mary's  Woolen  Mfg.  Co.,  60  Ohio  St. 
560,  54  N.  E.  528,  6  Amer.  Neg.  Rep. 
674.  The  opinion  of  the  court  in  this 
case,  per  Bradbury,  C.  J.,  is  as  fol- 
lows :     "  The  cause  was  submitted  to 


the  Court  of  Common  Pleas  on  the 
following  agreed  statement  of  facts: 
'  It  is  hereby  stipulated  that  this  case 
will  be  submitted  to  the  court  upon 
the  following  statement  of  facts  as 
the  evidence  in  this  case:  Plaintiff 
is  a  corporation  organized  under  the 
laws  of  Ohio,  and  owner  of  real  es- 
tate whereon  buildings  are  erected  in 
the  village  of  St.  Mary's,  Auglaize 
county,  Ohio,  and  was  such  at  all 
times  stated  in  the  petition  filed  in 
this  action.  The  defendant  is  a  part- 
nership organized  for  the  purpose  of 
doing  business  in  the  state  of  Ohio, 
and  owning  property  therein.  On  or 
about  January  25,  A.  D.  1896,  the 
defendant  was  the  owner  of  a  mag- 
azine and  contents  containing  about 
fifty  quarts  of  nitroglycerine  used  by 
the  defendant  in  its  business  of  man- 
ufacturing, storing,  and  vending  nitro- 
glycerine, which  magazine  was  situ- 
ated on  a  tract  of  land  belonging  to 
one    W.    G.    Kishler,    and    situated 


556 


Eemedies  Continued — Subject  Matter. 


§  386 


§  386.  Same  subject  continued. — In  an  important  New  Jer- 
sey case  the  facts  and  the  questions  of  law  decided  are  as  follows : 
The  defendant  company  were  engaged  in  constructing  their  rail- 
road, and  the  other  defendants  were  contractors  with  the  com- 
pany for  doing  a  portion  of  the  work,  under  a  contract  which  pro- 


something  over  a   mile  west  of  the 
buildings   so   owned   by   the   plaintiff 
in    St.    Mary's,    Ohio,    and    situated 
about   one-fourth    of    a    mile   distant 
from  the  corporation  line  of  the  vil- 
lage  of  St.  Mary's,   Auglaze  county, 
Ohio.    That  on  or  about  the  said  25th 
day   of   January,   A.   D.    1896,    while 
one  of  the  defendant's  servants  was 
upon  the  premises  upon  which  said 
magazine    was    located,     engaged     in 
transferring  about  seven  hundred  and 
fifty  quarts  of  nitroglycerine  from  a 
wagon  loaded  with  same  to  said  mag- 
azine, the  said   nitroglycerine   stored 
therein,  and  also  the  same  upon  the 
wagon  aforesaid,  from  some  cause  un- 
known   to    said    defendant,    exploded 
with  great  force  and  concussion,  caus- 
ing vibrations  in  the  atmosphere  suf- 
ficient in  power  and  violence  to  break, 
shatter,  and  destroy  three  plate  glass 
and.  three  common  glass  in  the  build- 
ings   owned   by   the   plaintiffs   afore- 
said, of  the  value  of  two  hundred  and 
forty  dollars  and  ten  cents,  by  rea- 
son of  which  explosion  and  the  break- 
age of  said  glass  the  plaintiffs  were 
injured  and   damaged  to  the   extent 
aforesaid.     That   nitroglycerine   is   a 
dangerous  substance,  and  likely  to  ex- 
plode.    That  demand  of  payment  of 
said    sum    has    been    made    by    the 
plaintiff  to  the   defendant,   and  pay- 
ment thereof  has  been  refused.'     This 
agreed    statement   of   facts   does   not 
show  that  the  plaintiff  in  error  vio- 
lated any  statute  of  the  State,  or  was 


in  any  degree  negligent   in  handling 
or  storing  the  explosive  substance  in- 
volved.    It  was  nitroglycerine,  a  well- 
known    and    highly-explosive    agency, 
which  the  agreed  statement  of  facts 
shows  is  a  dangerous  substance,  and 
likely  to  explode.     Is  one  who  brings 
upon   his   own  premises   such   agency 
liable  for  damages  caused  by  its  ex- 
plosion,  although  such  owner  is  not 
chargeable  with  either  want  of  care  or 
an  unlawful  act   in  connection  with 
the   casualty?       This   exact   question 
has  not  heretofore  been  considered  by 
this    court,    although    a    number    of 
cases  have  been  decided  by  the  court 
that  bear  a  general  resemblance  to  it. 
Fuel  Co.  v.  Andrews,  50  Ohio  St.  695, 
35  N.  E.  1059;  Water  Co.  v.  Olinger, 
54  Ohio  St.  532,  44  N.  E.  238;   City 
of  Tiffin  v.  McCormack,   34  Ohio  St. 
638.     The  tendency  of  these  cases  is 
towards  holding  the  parties  charged 
with    the   management    of    dangerous 
substances   to  a   strict   liability.      In 
City    of     Tiffin     v.     McCormack,     34 
Ohio  St.  638,  this  court  held :  '  Where 
the  owner  of  a  stone  quarry,  by  blast- 
ing   with    gunpowder,    destroys    the 
buildings  of  an  adjoining  landowner, 
it  is  no  defense  to  show  that  ordinary 
care  was  exercised  in  the  manner  in 
which  the  quarry  was  worked.'     And 
the  same  view  of  the  liability  of  one 
who,    by    blasting    rocks,    cast    frag- 
ments  thereof  against   the   house   of 
another,  was  taken  by  the  Court  of 
Appeals  of  New  York  in  the  cases  of 


557 


§  386         Remedies  Continued — Subject  Matter. 

hibited  them  from  subletting  any  part  of  the  work,  without  the 
consent  of  the  company's  engineer,  required  them  to  employ  com- 
petent servants,  and  provided  that  they  should  immediately  dis- 
charge, whenever  required  by  the  engineer  so  to  do,  any  servants 


Hay  v.  Cohoes  Co.,  2  N.  Y.  159,  and 
Tremain  v.  Cohoes  Co.,  Id.  163.    The 
court  in  the  first  case  decided  that: 
'  The  defendants,   a  corporation,   dug 
a  canal  upon  their  own  land  for  the 
purposes  authorized  by  their  charter. 
In  so  doing  it  was  necessary  to  blast 
rocks  with  gunpowder  and  the  frag- 
ments were  thrown  against  and   in- 
jured   the    plaintiff's    dwelling    upon 
lands  adjoining.     Held,   that  the  de- 
fendants were  liable   for  the  injury, 
although    no    negligence    or    want    of 
skill  in  executing  the  work  was  al- 
leged or  proved.'     And  in  the  second 
case    that      '  The    defendants    dug    a 
canal   upon   their   own   land,   and    in 
executing  the  work  blasted  the  rocks 
so    as   to   cast   the   fagments    against 
the    plaintiff's    house    on    contiguous 
lands.     Held,  in  an  action  on  the  case 
brought  to  recover  damages   for  the 
injury,    that    evidence    to    show    the 
work  done  in  the  most  careful  man- 
ner was  inadmissible,  there  being  no 
claim  to  recover  exemplary  damages, 
and  the  jury   having  been  instructed 
on   the  trial   to   render   their  verdict 
for    actual    damages    only.'      Counsel 
for  the  plaintiff  in  error  contend  that 
in  respect   of   the   matter  under  con- 
sideration   the    analogy    between   the 
act  of  blasting  rock  on  one's  premises 
and    storing    a    dangerous    explosive 
thereon  is  not  close.     In  the  one  case 
the  damage   is   caused  by   fragments 
of  rock  being  hurled  upon  or  against 
the    property    injured,   while   in    the 
other  case  the  damage  is  caused  by 


violent    atmospheric  vibrations   from 
the  explosion.      If,   however,  the  ex- 
plosion caused  fragments  of  the  build- 
ing  wherein    the    explosive    material 
was  stored,  or  other  solid  substance, 
to  be  thrown  against  the  property  in- 
jured, thereby  producing  damage,  the 
analogy   might    be   more   easily    per- 
ceived.    True,  it  might  be  said  that 
in    the    one    case    the    party    to    be 
charged  was  actively  engaged  in  the 
work  that  caused  the  injury,  while  in 
the  other  case   he  was   simply  using 
the   premises  to  store  the   dangerous 
substance,  not  intending  it  should  ex- 
plode.     These    distinctions,    however, 
do   not    seem    to    be    material.      The 
right  of  the  owner  of  a  stone  quarry 
to  blast  rock  therefrom  where  that  is 
necessary  to  a   profitable  use  of  his 
property,  or  the  right  of  one  to  make 
an  excavation  of  any  kind  on  his  own 
property  where  blasting  is  a   proper 
and  a  usual  mode  to  accomplish  tue 
owner's  purpose,  would  seem  to  be  of 
as  high  and  perfect  a  character  as  is 
the    right    of   an    owner    to    use    his 
premises  as  a  storehouse  for  explosivs 
substances.       Upon     what     principle 
should  an  owner  of  property  hold  it 
subject    to    the    right    of   another    to 
store  on  his  own  premises  adjacent  to 
it  nitroglycerine,   but  not  subject  to 
the  right  of  that  other  to  blast  rock? 
If    one    may   store   nitroglycerine   on 
his  own  premises,  and  not   be   liable 
to    adjacent    property    for    damages 
caused  by  its  exploding  unless  he  has 
been  negligent,  while  in  the  case  of 


558 


Remedies   Continued — Subject  Matter. 


§  386 


considered  by  the  engineer  to  be  incompetent.  The  contractors, 
with  the  consent  of  the  company,  sublet  the  rock  excavations  to  S., 
it  being  understood  by  all  parties  that  nitroglycerine  was  to  be 
used  in  blasting  the  rock.     S.  received  permission  of  the  engineer 


the  owner  of  the  quarry  the  latter  is 
liable  for  an  injury  to  an  adjacent 
property  resulting  from  blasting,  al- 
though free  from  negligence,  then  it 
is  plain  that  the  adjacent  proprietor 
holds  his  property  in  the  one  case 
subject  to  the  right  of  his  neighbor  to 
store  a  dangerous  explosive,  but  not 
to  the  right  of  his  neighbor  to  blast 
rock.  In  the  first  supposed  case  the 
liability  grows,  not  out  of  the  storing 
of  the  dangerous  explosive,  but  out  of 
the  negligence  of  the  person  storing 
it,  while  in  the  last  supposed  case,  the 
liability  springs  from  the  manner  in 
which  the  property  is  used,  i.  e.,  the 
blasting  and  negligence  need  not  be 
shown.  If,  in  the  latter  instance,  the 
party  blasting  is  liable  for  injuries 
that  resulted  from  his  act,  however 
careful  he  may  have  been,  the  reason? 
for  absolving  the  former  from  lia- 
bility, unless  he  has  been  negligent, 
are  not  apparent.  The  blasting  doubt- 
less is  a  menace  to  adjacent  property, 
but  so  is  the  storing  of  a  highly  ex- 
plosive substance. 

In  this  case  the  premises  on  which 
the  explosive  substance  was  stored 
and  the  premises  on  which  the  build- 
ing stood  that  was  injured  do  not 
appear  to  have  been  adjacent.  They 
were  a  mile  apart,  and,  for  anything 
that  appears  in  the  record,  many  par- 
cels of  real  estate  owned  by  third 
persons  may  have  intervened.  That, 
however,  does  not  seem  to  be  material 
either.  One  who,  in  blasting  rock, 
should  cast  fragments  across  a  strip 


of  adjacent  land  owned  by  a  third 
person  against  the  windows  of  a  more 
remote  proprietor  would  hardly  be 
heard  to  say  in  defense  of  his  act  that 
the  property  injured  was  not  adja- 
cent. Whatever  duty  he  owed  to  his 
neighbor  extended  equally  to  all  who 
might  fall  within  the  lines  of  danger. 
So  it  would  seem  in  the  case  of  ex- 
plosives the  right  of  all  within  the 
circle  of  danger  should  be  equal,  irre- 
spective of  whether  the  property  in- 
jured" was  adjacent  to  the  premises 
upon  which  the  material  was  stored. 
The  liability  of  one  who,  for  his  own 
purpose,  brings  up  on  his  own  prem- 
ises substances  dangerous  to  others 
if  not  kept  under  control,  was  ex- 
haustively discussed  by  the  judges  of 
England  in  the  case  of  Fletcher  v. 
Rylands,  1  Exch.  265,  and  afterwards, 
on  a  review  of  the  case,  in  the  House 
of  Lords,  L.  R.  3  H.  L.  330  (1).  In 
the  exchequer  chamber  Justice  Black- 
burn, in  giving  judgment,  employed 
the  following  language :  '  We  think 
that  the  true  rule  of  law  is  that  the 
person  who,  for  his  own  purposes, 
brings  on  his  lands,  and  collects  and 
keeps  there,  anything  likely  to  do  mis- 
chief if  it  escapes,  must  keep  it  in  at 
his  peril,  and,  if  he  does  not  do  so,  is 
prima  facie  answerable  for  all  the 
damage  which  is  the  natural  conse- 
quence of  its  escape.  Re  can  excuse 
himself  by  showing  that  the  escape 
was  owing  to  the  plaintiff's  default, 
or,  perhaps,  that  the  escape  was  the 
consequence  of  vis  major,  or  the  act 


559 


§  386 


Remedies  Continued — Subject  Matter. 


to  erect  on  the  company's  land  a  magazine  for  storing  nitro- 
glycerine necessary  for  the  work.  Afterwards  S.,  without  knowl- 
edge of  the  def  andants,  stored  in  said  magazine  a  quantity  of  nitro- 
glycerine belonging  to,  and  for  the  benefit  of,  another  company. 


of  God;  but  as  nothing  of  this  sort 
exists  here  it  is  unnecessary  to  en- 
quire what  excuse  would  be  sufficient. 
The  general  rule,  as  above  stated, 
seems,  on  principle,  just.  The  person 
whose  grass  or  corn  is  eaten  down  by 
the  escaping  cattle  of  his  neighbor,  or 
whose  mine  is  flooded  by  the  water 
from  his  neighbor's  reservoir,  or 
whose  cellar  is  invaded  by  the  filth  of 
his  neighbor's  privy,  or  whose  habita" 
tion  is  made  unhealthy  by  the  fumes 
and  noisome  vapors  of  his  neighbor's 
alkali  works,  is  damnified  without 
any  fault  of  his  own;  and  it  seems 
but  reasonable  and  just  that  the 
neighbor  who  has  brought  something 
on  his  own  property  which  was  not 
naturally  there,  harmless  to  others 
as  long  as  it  is  confined  to  his  own 
property,  but  which  he  knows  to  be 
mischievous  if  it  gets  on  his  neigh- 
bors', should  be  obliged  to  make  good 
the  damage  which  ensues  if  he  doe3 
not  succeed  in  confining  it  to  his  own 
property.  But  for  his  act  in  bring- 
ing it  there  no  mischief  could  have 
accrued,  and  it  seems  but  just  that 
he  should,  at  his  peril,  keep  it  there 
so  that  no  mischief  may  accrue,  or 
answer  for  the  natural  and  antici- 
pated consequences.  And  upon  au- 
thority this  we  think,  is  established 
to  be  the  law  whether  the  things  so 
brought  be  beasts,  or  water,  or  filth, 
or  stenches.'  This  language  was  ap- 
proved in  the  House  of  Lords  when 
the  cause  came  up  for  consideration 
there,  Lord  Cranworth  saying :     '  My 


Lords,  I  concur  with  my  noble  and 
learned  friend  in  thinking  that  the 
rule  of  law  was  correctly  stated  by 
Mr.  Justice  Blackburn  in  delivering 
the  opinion  of  the  exchequer  chamber. 
If  a  person  brings  or  accumulates  on 
his  land  anything  which,  if  it  should 
escape,  may  cause  damage  to  his 
neighbor,  he  does  so  at  his  peril.  If 
it  does  escape,  and  cause  damage,  he 
is  responsible,  however  careful  he 
may  have  been,  and  whatever  precau- 
tions he  may  have  taken  to  prevent 
the  damage.'  The  doctrine  in  this 
case  (Fletcher  v.  Rylands,  supra)  has 
not  been  accepted  by  some  of  the 
courts  of  this  country.  Marshall  v. 
Welwood,  38  N.  J.  Law  339;  Sweet  v. 
Cutts,  50  N.  H.  439;  Coal  Co.  v.  San- 
derson, 113  Pa.  St.  126,  6  Atl.  453; 
Losee  v.  Buchanan,  51  N.  Y.  476;  but 
has  been  approved  in  Shipley  v.  Fifty 
Associates,  106  Mass.  194;  Gorham  v. 
Gross,  125  Mass.  232;  Mears  v.  Dole, 
135  Mass.  510;  Cahill  v.  Eastman,  18 
Minn.  324  (Gil.  292).  In  the  case 
above  cited  from  New  York — Losee  v. 
Buchanan,  51  N.  Y.  476— and  that 
from  New  Jersey — Marshall  v.  Well- 
wood,  38  N.  J.  Law,  339 — a  casualty 
occurred  from  an  explosion  of  steam 
boilers. 

To  my  mind,  the  analog}7  between 
the  act  of  storing  so  highly  explo- 
sive and  dangerous  an  agency  as 
nitroglycerine  on  one's  premises  and 
that  of  conducting  a  business  thereon, 
which  requires  for  its  successful 
operation    the  use   of    steam,   is   not 


560 


Remedies  Continued — Subject  Matter. 


386 


While  a  portion  of  this  last-named  nitroglycerine  was  being  re- 
moved, at  the  request  of  its  owners,  an  explosion  occurred,  through 
the  negligence  of  a  servant  of  S.,  the  sub-contractor,  by  which 
plaintiff's  intestate  was  killed.     It  was  held  that  defendants  were 


complete,  although  each  is  an  explo- 
sive. Doubtless  both  are  dangerous 
agencies,  when  control  over  them  is 
lost.  The  use  of  steam  has,  however, 
so  generally  been  employed  in  every 
productive  industry  that  every  owner 
of  real  property  may  reasonably  be 
held  to  contemplate  the  contingency 
of  its  being  employed  upon  adjacent 
premises,  and  to  enjoy  his  property 
subject  to  that  risk.  In  a  great  city 
like  New  York  and  Chicago,  where 
numerous  and  various  industries  are 
conducted,  there  are  doubtless  many 
thousands  of  places  where  steam  is 
employed.  The  entire  population  of 
such  a  city  is  interested,  and  most  of 
them  directly  or  indirectly  benefited 
"by  these  industries.  Large  numbers 
of  them  labor  by  day  in  factories 
where  steam  furnishes  the  motive 
power,  and  many  of  them  sleep  at 
night  in  buildings  containing  engines 
in  active  operation.  The  modern 
steam  boiler  and  engine  cannot  be 
said  to  be  such  a  menace  to  property 
and  human  life  as  to  constitute  a 
nuisance  per  se.  They,  cannot,  as 
such,  be  driven  from  the  centers  of 
population.  Not  so,  however,  with 
gunpowder  and  nitroglycerine.  These 
latter  agencies,  on  account  of  their 
dangerous  character,  may  be,  and 
usually,  if  not  universally  are,  driven 
into  the  suburbs  of  towns  and  cities, 
remote  from  human  habitations  and 
valuable  structures.  Under  the  cir- 
cumstances that  surround  the  pro- 
ductive arts  and  industries  of  to-day, 


a  modification  of  the  strict  rule  of 
liability  in  favor  of  those  who  employ 
steam  in  such  arts  or  industries  may 
not  be  inconsistent  with  its  assertion 
against  those  who  store  gunpowder 
and  nitroglycerine,  or  blast  rocks,  ad- 
jacent to  the  property  of  others.  That 
public  policy  '  which  seeks  to  secure 
tne  welfare  of  the  many  may  demand 
such  modification.  Whether  upon 
such  grounds,  or  for  any  other  rea- 
sons, such  a  modification  of  the  rule 
should  obtain  in  the  case  for  the  use 
of  steam  is  not,  of  course,  before  the 
court,  and  the  question  is  only  con- 
sidered in  this  brief  way  to  show  that 
there  may  be  no  irreconcilable  con- 
flict between  the  cases  that  have  ab- 
solved the  owners  of  boilers  from  lia- 
bility for  the  consequences  of  an  ex- 
plosion occurring  without  their  fault, 
and  the  conclusions  reached  by  us  in 
the  case  under  consideration.  Doubt- 
less, gunpowder,  nitroglycerine,  and 
other  dangerous  explosives  are  use- 
ful agencies  in  many  industries,  as 
well  as  steam;  but  conceding  that,  in 
the  case  of  steam  boilers,  the  exten- 
sive and  varied  uses  to  which  steam 
is  devoted,  and  the  comparatively 
slight  danger  arising  from  its  use, 
require,  on  principles  of  public 
policy,  which  regards  the  in- 
terests of  the  great  body  of 
the  people,  that  every  owner  of 
real  property  should  be  held  to 
possess  it  subject  to  the  right  of  his 
neighbor  to  erect  a  manufactory  and 
employ  steam  on  adjacent   premises, 


161 


§  386 


Remedies  Continued — Subject  Matter. 


not  liable.  The  relation  of  master  and  servant  did  not  exist  be- 
tween the  servant  of  S.  and  the  defendants,  nor,  under  the  cir- 
cumstances, did  the  injury  result  from  a  nuisance,  erected  and 
maintained  on  the  defendant  company's  land  by  their  consent'.37 


yet  it  does  not  necessarily  follow 
that  such  owner  should  possess  his 
property  also  subject  to  the  right  of 
his  neighbor  to  erect  a  powder  or 
nitroglycerine  magazine  in  his  vicin- 
ity. The  existence  of  the  manufac- 
turing establishment,  although  it  em- 
ploys steam  as  a  motive  power,  may 
be,  and  doubtless  is,  in  many  in- 
stances, a  positive  benefit  to  real 
property  in  its  vicinity,  and  instead 
of  diminishing  may  enhance  its 
value;  while,  on  the  contrary,  the 
erection  and  use  of  a  nitroglycerine 
magazine  could  have  no  other  than  a 
disastrous  effect  on  the  value  of  all 
real  property  in  its  vicinity.  We 
think,  therefore,  the  right  to  main- 
tain the  former  may  be  placed  upon 
grounds  that  cannot  apply  to  the 
latter.  The  general  doctrine  upon 
the  subject  stated  in  Fletcher  v. 
Rylands,  supra,  seems  to  be  just  and 
fair  in  its  general  operation.  The 
syllabus  of  that  case,  as  announced 
by  the  House  of  Lords  ( L.  R.  3  H.  L. 
330),  seems  to  recognize  a  distinc- 
tion in  this  respect  between  an  or- 
dinary and  extraordinary  use  of  his 
premises  by  their  owner;  and,  had 
that  learned  tribunal  then  had  be- 
fore it  a  case  where  damages  were 
sought  on  account  of  injuries  re- 
sulting from  an  explosion  of  a  steam 
boiler  in  a  manufacturing  establish- 
ment, it  might  have  denied  the  lia- 
bility in  the  absence  of  proof  of 
negligence,  on  the  ground  that  the 
owner  was  using  his  premises  in  an 


ordinary  manner.  But,  whatever 
might  have  been  done  by  the  House 
of  Lords  in  the  case  supposed,  we  are 
of  opinion  that  the  storing  of  nitro- 
glycerine should  be  deemed  to  be  an 
extraordinary  and  unusual  use  of 
property,  and  we  can  see  no  principle 
upon  which  an  exception  to  the  gen- 
eral doctrine  laid  down  in  Fletcher  v. 
Rylands,  supra,  can  be  held  to  exist 
in  favor  of  one  who  stores  upon  his 
own  premises  that  or  any  other  dan- 
gerous explosive.  Judgment  affirmed.'' 
Shauck,   J.,   dissents. 

Ordinance  of  a  village  pro- 
hibiting storage  within  its  limits, 
and  the  transportation  along  its 
streets  of  dynamite  or  nitro  glycerine 
in  quantities  larger  than  five  quarts, 
being  within  the  power  conferred  upon 
cities  and  villages  by  Ohio  Rev.  Stat. 
§  1C92,  subd.  33,  and  to  regulate  the 
transportation  and  keeping  of  gun 
powder  and  other  explosive  and  dan- 
gerous combustibles  conferred  by 
subd.  14,  of  the  same  section  is  not 
inconsistent  with  §§  6953,  8853-8857, 
relating  to  the  manufacture,  trans- 
portation, and  storage  of  dynamite. 
Hayes  v.  St.  Mary's,  55  Ohio  St.  197, 
36  Ohio  L.  J.  218,  44  N.  E.  924  (con- 
viction. ) 

37.  Cuff  v.  Newark,  etc.,  R.  R.  Co., 
35  N.  J.  17,  syllabus  to  10  Am.  Rep. 
205.  See,  Shearman  &  Redfield  on 
Negligence    (5th  ed.)    §§  167,  173. 

Explosion  while  gunpowder  in 
consignee's  hands  for  sale  on  com- 
mission, owners  not  liable.  Abrahams 


562 


Remedies  Continued — Subject  Matter.  §§  387,  388 

§  387.  Dangerous  nuisances  continued — Petroleum,  gasoline, 
naphtha,  crude  oils,  etc.38 — Pipes  for  the  transportation  of  danger- 
ous explosive  and  inflammable  substances  are  not  per  se  a 
nuisance,  though  laid  near  a  sewer  in  a  city.39  And  the  fact  that 
insurance  rates  are  thereby  increased  does1  not  make  an  oil  pipe 
line  a  nuisance.40  But  the  percolations  of  oil  in  and  through 
sewer  connections  and  the  escape  of  gases  through  a  manhole  there- 
by polluting  the  atmosphere,  to  the  injury  of  another's  property 
and  business  constitute  a  nuisance.41  If  the  State  has  authorized 
such  acts  by  statute  neither  the  production  nor  storage  of  crude 
oil  is  a  public  nuisance  nor  is  the  storage  of  it  on  premises 
adjacent  to  or  adjoining  the  premises  of  another  a  private  nui- 
sance per  se,  although  the  method  of  its  use  and  the  neglect  to 
properly  care  for  it  may  create  a  nuisance.42  And  it  does  not 
constitute  a  nuisance  per  se  to  maintain  in  a  city  storage  ware- 
houses and  tanks  for  gasoline  and  carbon  oil.43 

§  388.  Same  subject  continued. — It  is  held  that  the  near-by 
location,  with  relation  to  a  dwelling  house,  of  coal-oil  and  gasoline 
tanks  is  not  of  itself  a  nuisance  carrying  liability,  even  though 
such  tanks  are  also  near  to  steam  railroads ;  there  being  no  show- 
ing of  negligence  in  construction  or  of  want  of  care  to  prevent 
ignition  from  sparks  from  locomotives  and  no  just  ground  of  ap- 
prehension, as  claimed,  from  fire  and  consequent  injury ;  and  the 

v.    California    Powder    Co.,    5    N.    M.  Police  power  of  State  to  regu- 

479,  23  Pac.  785,  8  L.  R.  A.  378.  late    keeping    dangerous,    etc.,    oils. 

38.  See  §§  383-385  herein.  See,    Standard   Oil    Co.    v.    Common- 

39.  Lee  v.  Vacuum  Oil  Co.,  54  Hun,  wealth,  26  Ky.  L.  Rep.  985,  82  S.  W. 
156,  7  N.  Y.  Supp.  426,  26  N.  Y.  St.       1020. 

R.  814.  As  to  violation  of  ordinance  by 

40.  State,  Benton  v.  Elizabeth,  61  storage  in  warehouses  of  petroleum, 
N.  J.  L.  411,  39  Atl.  683,  8  Am.  &  etc.,  a  reasonable  time.  Wright  v. 
Eng.  Corp.  Cas.  N.  S.  745,  affd.  61  Chicago  &  N.  W.  Co.,  27  111.  App. 
N.  J.  L.  693,  40  Atl.  1132.  200. 

41.  Brady  v.  Steel  &  Spring  Co.,  43.  Gavigan  v.  Atlantic  Ref.  Co., 
101  Mich.  277,  60  N.  W.  687,  26  L.  R.  186  Pa.  604,  42  W.  N.  C.  465,  40  Atl. 
A.  175.  834. 

42.  Langabaugh  v.  Anderson,  68 
Ohio  St.  131,  67  N.  E.  286,  14  Am. 
Neg.  Rep.  170,  176. 

563 


389         Remedies  Contested — Subject  Matter. 

fact  that  the  rental  and  salable  value  of  the  property  has  decreased 
is  held  insufficient.44  But  the  sinking  of  oil  wells  and  the  storing  of 
oil  so  near  another  person's  premises  that  the  danger  of  fire  there- 
from is  imminent  and  continuous  constitutes  a  prima  facie  case 
for  a  temporary  injunction  against  operating  the  wells  until  final 
determination  of  the  question  of  nuisance.40  So  a  perpetual  in- 
junction may  be  granted  against  the  drilling  and  operation  of  oil 
wells  so  near  to  another's  dwelling  in  a  city  that  he  is  injured  in 
his  enjoyment  thereof,  and  also  in  the  diminished  value  of  adja- 
cent property,  the  remedy  at  law  being  inadequate.46  So  a  nuisance 
may  be  created  by  escaping  crude  petroleum  from  storage  tanks,47 
and  by  oil  brought  from  a  distance  escaping  from  pipe  lines.48 
But  merely  permitting  another  to  commit  a  nuisance  does  not 
render  one  liable  for  its  consequences,  and  where  the  storage  of 
crude  oil  is  not  of  itself  a  nuisance  to  adjacent  or  adjoining  prem- 
ises and  if  the  lessor  knew  that  oil  would  be  produced  by  drilling 
and  stored  on  the  leased  premises,  he  would  not  be  contemplat- 
ing the  creation  or  maintenance  of  a  nuisance  unless  he  also  knew 
that  it  would  be  negligently  stored  and  cared  for  by  the  lessees 
and  the  law  will  not  presume  that  the  lessees  would  be  negligent.49 
If  a  fire  originates  from  some  unknown  cause  in  the  basement  of 
a  store  where  one  who  deals  in  builders'  materials  keeps  inflam- 
mable substances  of  that  nature  he  is  not  liable  therefor  where  no 
negligence  is  shown.50 

§  389.  Dangerous  nuisances  continued — Spring  guns. — While 
the  right  to  set  spring  guns  in  dwellings  and  warehouses  as  a  pro- 
tection  against   burglary  has  been   sanctioned,  nevertheless  they 

44.  Harper  v.  Standard  Oil  Co.,  78  48.  Hauck    v.    Tide    Water    Pipe 
Mo.  App.  338,  2  Mo.  App.  Rep'r  221.       Line  Co.,  175  Pa.  366,  26  Atl.  644,  20 

45.  McGregor  v.  Camden,  34  S.  E.       L.  R.  A.  642.  30  W.  N.  C.  45. 

936.  49.  Langabaugh        v.        Anderson 

Injunction  pendente  lite.       See       68  Ohio,   131,   67  N.   E.   286,  14  Am. 
Standard  Oil  Co.  v.  Oeser.  11  App.  D.       Xeg.  Rep.  170,  181. 
C.  80,  20  Wash.  L.  Rep.  500.  50.  Cook  v.  Anderson,  85  Ala.  99, 

46.  Cline  v.  Kirkbride.  12  O.  C.  D.       4   So.   713. 
517,  22  Ohio  Cr.  Ct.  R.  527. 

47.  Berger  v.  Minneapolis  Gaslight 
Co.    (Minn,  i    6  X.   W.  336. 

564 


Remedies  Continued — Subject  Matter.  §§  390,  391 


may  be  such  an  actual  annoyance  and  injury  to  the  public  as  to 
constitute  a  nuisance.51 

§  390.  Baseball — Ball  park. — A  baseball  game  is  not  per  se  a 
nuisance,52  although  Sunday  ball  games  may  be  co  conducted  or  per- 
mitted to  be  carried  on  as  to  be  both  a  public  and  private  nuisance 
and  be  the  ground  of  relief  by  injunction.53  But  the  mere  threat- 
ened operation  of  a  ball  park  is  not  ground  for  equitable  relief.04 

§  391.  Bawdy  house  or  house  of  ill-repute. — The  keeping  of 
a  bawdy  house  is  a  common  nuisance,  as  it  endangers  the  public 
peace  by  drawing  together  dissolute  and  debauched  persons ;  and 
also  has  an  apparent  tendency  to  corrupt  the  manners  of  both, 
sexes  by  such  an  open  profession  of  lewdness.55 


51..  State  v.  Moore,  31  Conn.  479, 
83  Am.  Dec.  159.  See,  generally,  as 
to  right  as  against  burglars,  Gray  v. 
Combs,  7  J.  J.  Marsh.    (Ky.)  478. 

52.  Alexander  v.  Tebeau,  24  Ky 
Law  Rep.  1305,  71  S.  W.  427. 

53.  Gilbough  v.  West  Side  Amuse 
ment  Co.,  64  N.  J.  Eq.  27,  53  Atl.  289 
8  Pa.   Co.   Ct.  R.  435. 

See  Seastream  v.  New  Jersey  Ex 
hibition  Co.  (N.  J.  Eq.),  58  Atl.  532 
Compare,  Commonwealth  v.  Meyers 
8  Pa.  Co.  Ct.  R.  435. 

54.  Alexander  v.  Tebeau,  24  Ky.  L 
Rep.  1305,  71  S.  W.  427.  Examine 
Seastream  v.  New  Jersey  Exhibition 
Co.    (N.  J.  Eq.),  58  Atl.  532. 

55.  Bacon's  Abr.  (7  Wilson's  Ed. 
1854)  223;  Ely  v.  Niagara  County 
Supervisors,  36  N.  Y.  297.  See  Smith 
v.  Commonwealth,  6  B.  Mon  (45  Ky.) 
21  (indictable)  ;  Cranford  v.  Tyrrell, 
128  N.  Y.  341,  28  N.  E.  514,  40  N. 
Y.  St.  R.  414,  affg.  37  N.  Y.  St.  R. 
967,  13  N.  Y.  Supp.  951  (house  of 
assignation  and  of  ill  fame;  injunc- 
tion lies,  even  though  a  public  nui- 
sance  and   subject     to     indictment)  ; 


Anderson  v.  Doty,  33  Hun  (N.  Y.), 
160  (bawdy  house,  held  that  no  in- 
junction would  be  awarded)  ;  Blagen 
v.  Smith,  34  Oreg.  394,  404,  56  Pac. 
292,  44  L.  R.  A.  522  (bawdy  house 
is    public    nuisance). 

As  to  effect  of  city  charters, 
ordinances  and  by-laws  relating 
to  houses  of  ill-fame,  the  validity,  etc., 
of  such  enactments,  see  McAllister 
v.  Clark,  33  Conn.  91;  Robb  v.  In- 
dianapolis, 38  Ind.  49;  City  of  Cen- 
terville  v.  Miller,  57  Iowa,  56,  225, 
10  N.  W.  293,  630;  State  v.  Oleson, 
26  Minn.  507,  5  N.  W.  959;  State  v. 
Charles,  16  Minn.  474. 

Visiting  or  being  occupant 
of  bawdy  house  beyond  city  limits, 
and  invalidity  of  ordinance  relating 
thereto,  see  Robb  v.  Indianapolis, 
38  Ind.  49. 

Houses  of  prostitution  are 
common  or  public  nuisances. 
"  Their  maintenance  directly  tends  to 
corrupt  and  debase  public  morals,  to 
promote  vice,  and  to  encourage  dis- 
solute and  idle  habits,  and  the  sup- 
pression   of    nuisances   of   this   char- 


565 


§§  392,  393  Remedies  Continued — Subject  Matter. 

i 
§  392.  Bees. — Whether  the  owning  or  keeping  of  bees  consti- 
tutes a  nuisance  depends  upon  circumstances,  but  such  acts  do  not 
constitute  a  nuisance  of  themselves  and  cannot  validly  be  declared 
so  by  ordinance.56  Bees  may,  however,  from  the  manner  of  keep- 
ing them,  or  by  reason  of  locality  or  otherwise  cause  such  annoy- 
ance and  injury  as  to  constitute  such  a  nuisance  that  damages  and 
relief  by  injunction  will  be  awarded.57 

§  393.  Cemeteries,  burial  grounds. — Neither  a  private  burial 
ground,58  nor  a  public  burial  ground  or  cemetery  is  a  nuisance 
per  se.  In  order  to  constitute  such  places  a  nuisance  clear  proof 
of  injury  or  damage  from  the  manner  of  burial  or  other  circum- 
stances peculiar  to  the  particular  place  must  be  shown;  and  the 
situation,  relative  altitude  and  character  of  the  ground,  the  chance 
or  reasonable  probability  of  pollution  or  contamination  of  the 
atmosphere  or  of  springs,  wells  or  waters  generally,  or  the  danger 
to  the  physical  comfort,  life  and  health  of  those  who  reside  in  the 
neighborhood  or  immediate  vicinity  are  all  factors  of  importance 
.and  should  control  in  the  determination  of  the  question  whether 
there  exists  any  nuisance.59     So  where  relief  is  claimed  to  restrain 

acter,    and    having   this    tendency    is  57.  Olmstead  v.  Rich,  53  Hun   (N. 

one  of  the  important  duties  of  gov-  J.)    638,  6  N.  Y.  Supp.  826,  3  Silv. 

?rnment.      The    suppression    of    such  Sup.  Ct.  447.     A  right  to  jury  trial 

houses,  as  evidenced  by  the  stringent  was,  however,  denied  in  this  case  as 

laws  concerning  them,   is  the  public  not  being  within   Code  Civ.   Proc.   § 

policy  of  the  State,  and  their  abate-  968.    But,  see,  as  to  this  point  of  the 

ment  is   to  be   accomplished  by  any  case,  Hudson  v.  Caryl,  44  N.  Y.  553; 

reasonable  and  effective  means  which  Lefrois  v.   Munroe   County,   88    Hun, 

the     government     shall     adopt,     and  109,  34  N.  Y.  Supp.  612. 

which  does  not  involve  a  breach  of  the  58.  Kingsbury  v.  Flowers,  65  Ala. 

peace    or     the     invasion     of    private  479,  39  Am.  Rep.  14. 

rights,"  and  if  the  place  where  they  59.  Kingsbury  v.  Flowers,  65  Ala. 

are   is   a  public   place,   police  officers  479,     39     Am.     Rep.     14;     Los     An- 

have   the  right  therein,   even   though  geles     County    v.     Hollywood     Ceme- 

there  are   swinging  doors  across   the  tery  Assoc,  124  Cal.  344,  57  Pac.  153, 

sole    passage    way    leading    thereto.  71  Am.  St.  Rep.  75;  Lakeview  v.  Rose 

Pon  v.   Wittman,   147   Cal.  280,  292,  Hill  Cemetery  Co.,  70  111.  191,  22  Am. 

293,  per  Lorigan,  J.  Rep.  71;  Begein  v.  Anderson  City,  28 

56.  Arkadelphia  v.  Clark,  52  Ark.  Ind.  79;  Musgrove  v.  Catholic  Church, 

23,  11  S.  W.  957.  10  La.  Ann.  431;   Monk  v.   Packard, 

566 


Remedies  Continued — Subject  Matter. 


§  393 


the  establishment  of  a  cemetery  tlie  facts  relied  on  must  be  stated, 
as  a  bare  allegation  that  it  is  a  nuisance  is  insufficient.60  But 
drainage  through  a  sewer  from  cemeteries  which  pollutes  a  stream 
may  be  enjoined  as  a  nuisance  where  the  water  is  thereby  ren- 
dered unfit  for  domestic  uses  for  harvesting  ice  and  for  watering 
stock.61  So  a  tomb  on  private  premises  may  be  a  nuisance.62  The 
legislature  may  regulate  interments  of  the  dead,63  and  a  breach 
of  statutory  prohibition  as  to  location  of  a  cemetery  with  relation 
to  dwelling  houses  may  be  the  ground  for  an  injunction64  But  the 
pollution  of  a  stream  cannot  be  authorized  by  contract  by  a  ceme- 
tery association,65  although  the  facts  will  be  considered  by  the 
court  that  a  municipal  corporation  has  both  by  formal  contract  and 
by  a  proper  resolution  permitted  a  cemetery  to  be  located,66  and 
where,  acting  within  the  limits  of  a  lawful  authorization  so  to 
do  the  bounds  of  a  cemetery  are  extended  by  the  cemetery  authori- 
ties, the  owner  of  adjacent  property  whose  legal  or  conventional 
rights  have  not  been  invaded  cannot  recover  for  depreciation  in 
value  of  such  property.67     And  the  unsightliness  of  a  cemetery  lot 


71  Me.  309,  36  Am.  Rep.  315;  Braasch 
v.  Cemetei-y  Assoc.  (Neb.),  95 
N.  W.  646;  Clark  v.  Lawrence,  59  N. 
C.  83,  78  Am.  Dec.  241;  Ellison  v. 
Washington  County  Comm'rs,  58  N. 
C.  57;  Dunn  v.  Austin,  77  Tex.  139, 
11  S.  W.  1125;  Jung  v.  Neraz,  71 
Tex.  396,  95  W.  344. 

Proposed  use  by  a  person  of 
his  grounds  for  interring  therein 
dead  bodies  which  would  probably  re- 
sult in  contaminating  the  waters  of 
another  person's  wells  with  disease, 
and  thus  endanger  the  health  and 
lives  of  the  latter  and  his  family, 
constitutes  a  private  nuisance  and 
may  be  enjoined.  Lowe  v.  Prospect 
Hill  Cemetery  Assoc,  58  Neb.  94, 
78  N.  W.  488,  46  L.  R.  A.  237. 

When  nearness  of  cemetery 
does  not  make  it  a  nuisance,  see 
Elliott  v.  Ferguson  (Tex.  Civ.  App.), 
83  S.  W.  56. 


60.  Begein  v.  City  of  Anderson,  28 
Ind.  79.  See  Dunn  v.  Austin,  77  Tex. 
139,  11  S.  W.  1125. 

61.  Barrett  v.  Mt.  Greenwood 
Cemetery  Assn.,  159  111.  385,  42  N. 
E.   891,  31  L.  R.   A.   109. 

62.  Barnes  v.  Hathorn,  54  Me.  124. 

63.  Lakeview  v.  Rose  Hill  Ceme- 
tery Co.,  70  111.  191,  22  Am.  Rep.  71. 
See  Austin  v.  Austin  City  Cemetery 
Ass'n  (Tex.  Civ.  App.),  28  S.  W. 
1023,  following  87  Tex.  330. 

64.  Henry  v.  Perry  Twp.  Trustees, 
48  Ohio  St.  671,  27  Ohio  L.  J.  339, 
30  N.  E.  1122.  Examine,  Pfleger  v. 
Groth,  103  Wis.  104,  79  N.  W.  19. 

65.  Barrett  v.  Mt.  Greenwood  Cem- 
etery Assn.,  159  111.  385,  42  N.  E. 
891. 

66.  Musgrove  v.  Catholic  Church, 
10  La.  Ann.  431. 

67.  Robert  v.  Les  Cure  et  Marguil- 


567 


§§  394,  395  Remedies  Continued — Subject  Matter. 

does  not  make  it  a  nuisance  where  such  condition  can  be  remedied 
by  proper  grading  and  filling  in.68 

§  394.  Cooking  and  cooking  ranges. — Cooking  is  not  a  nui- 
sance per  se,  nor  can  it  be  said  that  the  cooking  of  onions  and  cab- 
bage is  necessarily  a  nuisance.69  But  a  cooking  range  or  stove  may 
be  so  located  with  relation  to  adjacent  property  or  partition  walls 
that  its  use  injures  another's  property  as  by  injuring  his  goods  or 
house,  driving  away  his  customers,  etc.,  and  rendering  his  prem- 
ises uncomfortable  and  disagreeable.70 

§  395.  Gambling  house. — All  common  gaming  houses  are  nui- 
sances in  the  eye  of  the  law,  as  they  promote  cheating  and  other 
corrupt  practices,  and  incite  to  idleness,  and  avaricious  ways  of 
gaining  property,  great  numbers,  whose  time  might  otherwise  be 
employed  for  the  general  good  of  the  community.71  And  a  faro 
gaming  house  is  a  nuisance  per  se.12  But  if  no  gaming  is  allowed 
therein  a  billiard  room  is  not  a  nuisance  where  it  is  carried  on  in 


Hers,  Rap.  Jud.  Queb.,  9  S.  C.  489. 
See,  also,  Dunn  v.  City  of  Austin,  77 
Tex.   139,   11   S.   W.   1125. 

68.  Woodstock  Burying  Ground 
Assoc,  v.  Hager,  68  Vt.  488,  35  Atl. 
431. 

69.  Shroyer  v.  Campbell,  31  Ind. 
App.  83,  67  N.  E.  193,  195.  Ex- 
amine, Washington  Lodge,  etc.,  v. 
Frelinghuysen  (Mich.),  101  N.  W. 
569,   11   Det.   L.   N.   603. 

70.  Grady  v.  Wolsner,  46  Ala.  381, 
7  Am.  Rep.  593. 

Defendant  placed  in  his  kit- 
chen and  nsed  in  business  as 
hotel  proprietor  a  large  cooking 
range  with  a  shaft  for  hot  air  which 
interfered  with  the  comfort  of 
plaintiff's  house  by  overheating  his 
wine  cellar.  It  was  held  that,  al- 
though the  use  by  defendant  of  his 
range  and  shaft  was  perfectly  reason- 
able plaintiff  was  entitled  to  an  in- 


junction to  restrain  the  nuisance 
thereby  caused.  Broder  v.  Saillard, 
45  L.  J.  Ch.  414,  2  Ch.  D.  692,  fol- 
lowed Reinhardt  v.  Mentasti,  42  Ch. 
D.  685,  58  L.  J.  Ch.  787,  61  L.  T.  328. 
38  W.  R.   10,  40  Alb.  L.  J.  490. 

71.  Bacon's  Abr.  (7  Wilson's  ed. 
1854)  223;  State  v.  Layman,  5  Har. 
(Del.)  510;  Hill  v.  Pierson,  45  Neb. 
27  Chic.  Leg.  N.  415,  63  N.  W. 
835;  State  v.  Patterson,  14  Tex.  Civ. 
App.  465,  37  S.  W.  478,  44  Cent.  L. 
J.    162. 

Gaming  apparatus.  See  note  19 
L.   R.   A.    196. 

Character  of  evidence  to  war- 
rant injunction  for  gaming  house, 
see  State  v.  Patterson,  14  Tex.  Civ. 
App.  485,  44  Cent.  L.  J.  162,  37  S. 
W.  478. 

72.  State  v.  Doon,  R.  M.  Charlt 
(Ga.)    1. 


568 


Kemedies  Continued — Subject  Matter.  §  396 

an  orderly  manner  and  the  noise  does  not  disturb  the  neighbor- 
hood.73 The  matter  of  gambling  is  now,  however,  so  far  under 
statutory  prohibition  that  such  statutes  should  be  resorted  to  for 
the  remedy. 

§  396.  Deposits  on  land — Garbage,  ashes,  offensive,  etc.,  mat- 
ter.74— The  unauthorized  use  of  the  premises  of  another  in  put- 
ting trash,  filth  and  garbage  upon  the  same,  in  such  a  manner  as 
to  interfere  constantly  with  their  reasonable  and  unimpeded  use 
by  the  owner,  and  to  occasion  him  hurt,  annoyance  and  damage,  in 
addition  to  being  a  nuisance  is  a  continuing  trespass  which  may  be 
irreparable  in  damages,  to  avoid  the  consequences  of  which  a 
court  of  equity  may  interfere  by  in  junction. 74a  An  injunction 
will  also  lie  to  restrain  a  nuisance  consisting  of  deposits  by  de>- 
fendant  and  others  in  a  gully  or  ravine  on  lots  owned  by  defend- 
ant, of  refuse,  particularly  stable  manure,  rendering  the  premises 
unsanitary,  compelling  plaintiff  in  warm  weather  to  keep  his 
windows  closed  at  times,  and  also  producing  cases  of  fever  in  his 
family,  as  such  conditions  essentially  interfere  with  the  comforta- 
ble enjoyment  of  life  and  property.75  So,  where,  by  change  of 
grade  of  a  street  and  the  filling  up  of  natural  channels,  water  and 
refuse  are  discharged  upon  plaintiff's  land,  a  continuing  nuisance 
is  created,  an  action  lies  in  equity  to  abate  such  nuisance  notwith- 
standing the  city  charter  provides  for  filing  a  claim  for  damages 
and  the  appointment  of  a  commission  to  determine  the  same, 
and  also  provides  that  no  action  shall  be  brought  until  after  a 
specified  period  after  presentment  of  a  claim,  etc.,  as  such  pro- 
visions are  not  applicable.753.  And  where  a  statute  so 
provides,  an  injunction  will  lie  at  the  suit  of  the  attorney-general 
on  the  relation  of  the  local  authorities  to  restrain  the  owner  of 
vacant  land  from  allowing  it  to  become  or  continue  a  public  nuis- 

73.  People  v.  Sergeant,  8  Cow.  (N.       in  such  case.     See  Evans  v.  Wilming- 
Y.)  139.  ton  &  W.  R.  Co.,  96  N.  C.  45,  1  S.  E. 

74.  Mining  debris   and  depos-       529. 

its,  see  §  277,  herein.  75.  Percival  v.  Yousling,  120  Iowa, 

74a.    Lowe  v.  Holbrook,  71  Ga.  563  451,  94  N.  W.  913;  Code  §  4302. 

(suit  for  injunction  and  damages).  75a.  So  held  in  Lamary  v.  City  of 

Preliminary   restraining  order  Fulton,  109  N.  Y.  App.  Div.  424. 

569 


§  396         Remedies  Continued — Subject  Mattee» 

ance  or  injury  to  health,  by  the  accumulation  thereon  of  refuse 
and  filth,  even  though  he  has  surrounded  such  land  by  a  boarding, 
where  people  have  broken  up  the  boarding  and  so  used  the  land 
that  its  condition  constitutes  a  continuing  public  nuisance.76  So 
evidence  that  offensive  deposits  of  sewage  on  land  had  remained 
there  at  the  date  of  the  trial,  and  that  it  was'  reasonably  necessary 
to  remove  the  same  in  abatement  of  the  nuisance  warrants  a  recov- 
ery of  the  reasonable  cost  of  removal.77  But  an  unsightly  ap- 
pearance of  a  lot  caused  by  depositing  certain  substances  thereon 
does  not  of  itself  constitute  a  nuisance.  There  must  be  an  injury 
caused  by  gases  or  "  something  else  "  coming  from  such  deposits, 
which  renders  the  enjoyment  of  property  specially  inconvenient 
and  uncomfortable.78  In  New  York,  where  the  dock  commission- 
ers granted  to  the  street  cleaning  department  the  authority  to  erect 
and  maintain  a  dumping  board  on  a  crib  bulkhead,  and  the  latter 
department  erected  and  maintained  such  dumping  board  and  other 
buildings  in  connection  with  the  same,  and  used  such  board  and 
structures  as  a  dumping  place  for  waste  paper,  ashes,  etc.,  but  ex- 
cluding garbage  deposits;  it  was  held  that  while  the  street  at  the 
foot  of  which  such  board  and  structures  existed  was  unopened  the 
dock  department  had  the  right  to  grant  such  permit,  but  the  ques- 
tion of  the  right  to  maintain  such  board,  etc.,  after  the  street  was 
opened  was  undecided.79  The  court,  per  Hatch,  J.,  said :  "  It  is 
to  be  borne  in  mind  that  the  work  of  the  street  cleaning  depart- 
ment is  a  work  of  necessity.  Upon  it  is  dependent  in  a  large  de- 
gree the  comfort,  health  and  happiness  of  a  large  city,  and  it  is 
common  knowledge  that  some  individuals  must  always  suffer  more 

76.  Attorney  General  v.  Tod,  Heat-  85  Am.  St.  Rep.  643,  49  Atl.  687  (ac- 
ley    (C.  A.,   1897),   1   Ch.  560,   66   L.       tiononcase). 

J.   Ch.  N.   S.  275,   76   Law.  T.   Rep.  79.  Coleman  v.  City  of  New  York, 

174,  rev'g  75  Law.  T.  Rep.  452.  75  N.  Y.  Supp.  342,  70  App.  Div.  218, 

77.  City  of  Mineral  Wells  v.  Rus-  rev'g  72  N.  Y.  Supp.  359,  35  Misc. 
sell  (Tex.  Civ.  App.,  1902),  70  S.  W.  664,  aff'd  66  N.  E.  1106  (Mem.); 
453  (judgment  of  court  below  for  Laws  of  1887,  c.  697,  as  amended 
abatement  of  nuisance  and  injunction  Laws  1888,  c.  272,  and  Laws  1889,  c. 
reversed).  257;   Greater  New  York  Charter,   §§ 

Deposits  of  sewage  on  land,  6ee  534,  542,  836.  (The  action  was  one 
§S  283-286,  herein.  to  restrain). 

78.  Lane  v,  Concord,  70  N.  H.  485, 

570 


Remedies  Continued — Subject  Matter.  §  397 

inconvenience  and  discomfort  from  the  performance  of  this  pub- 
lic necessity  than  others.  If  the  manner  and  method  adopted  in 
the  conduct  of  the  business  does  not  create  a  nuisance,  the  right  to 
conduct  it  must  be  supported.  .  .  .  We  think  the  trial  court 
would  have  failed  to  find  that  this  business  as  conducted  consti- 
tuted it  a  nuisance,  had  it  not  been  for  the  fact  that  it  regarded 
the  existence  of  the  structure  a  nuisance  per  se.  As  we  regard 
the  structure  as  lawful,  and  the  evidence  as  insufficient  upon  which 
to  find  that  the  conduct  of  the  business  created  a  nuisance  it  neces- 
sarily follows  that  the  judgment  should  be  reversed  and  a  new 
trial  granted." 

§  397.  Hospitals,  pest-houses,  infectious  and  contagious 
diseases. — Hospitals  and  houses  for  the  sick  are  not  prima  facie 
or  per  se  nuisances,  but  they  might,  under  some  circumstances,  be- 
come s'uch,80  and  be  subject  to  injunction  for  maintaining  a  nuis- 
ance or  to  restrain  its  continuance  where  the  evidence  is  clear  and 
certain,81  as  in  cases  where  contagious  diseases  are  developed.82 
While,  however,  the  mere  erecting  of  a  pest-house,  not  being  an 
unlawful  thing,  cannot  be  a  nuisance  per  se,  still  if  a  method  is 
pursued  that  will  make  it  dangerous  beyond  that  contemplated  by 
law  then  it  may  be  a  nuisance ;  and  where  it  is  so  negligently  and 
carelessly  used,  or  so  used  contrary  to  the  intention  of  the  law  it 
may  become  a  nuisance  and  be  enjoined.82a  So  a  tenement  house 
cut  up  into  small  apartments  and  thickly  inhabited  by 
poor  people  in  a  filthy  condition  and  calculated  to  breed 
diseases  during  the  prevalence  of  a  contagious  disease 
is    a    public    nuisance    which   may    be    torn    down    to    abate    it. 

80.  Bessonies  v.  City  of  Indianap-  Bontjes,   104  111.  App.  484,  aff'd  207 

olis,  71  Ind.  189,  195,  196.      See,  also,  111.   553,   69  N.   E.   748,   64   L.  R.   A. 

Ex  parte  Whitwell,  98  Cal.  73,  19  L.  215   (at  instance  of  private  individual 

R.  A.  727,  35  Am.  St.  Rep.   152,  32  as  a   private  nuisance). 

Pac.    870;    Barnard    v.    Sherley,    135  82.  Gilford     (Gifford)     v.     Babies' 

Ind.    547,   567,   24   L.   R.   A.   568,   41  Hospital,  1  N.  Y.  Supp.  448,  17  N.  Y. 

Am.   St.  Rep.  454,  34  N.  E.  600,  35  St.  R.  886.  21  Abb.  N.  C.  159. 

N.   E.   117    (a  case  of   complaint  for  82a.  Lorrain    v.    Rolling,    24    Ohio 

injunction   and   for   damages,   consid-  Cir.  Ct.  R.  82. 

ered  at  length  in  §  270,  herein).  82b.  Meeker  v.  Van  Rensalaer,   15 

81,.  Deaconess  Home  &  Hospital  v.  Wend.   (ST.  Y. )   397. 

571 


§  398         Remedies  Continued — Subject  Matter. 

Again,  the  erection  of  a  pest-house,  or  of  additional  buildings  there- 
for may  within  substantially  the  same  rules  be  enjoined  where 
the  locality  is  such  as  to  seriously  impair  residential  property 
values,  or  such  as  to  be  dangerous  to  the  community.83  But  it  is 
held  that  a  temporary  smallpox  hospital  is*  not  a  noxious  or  offen- 
sive business  within  the  English  Public  Health  Acts,  1875,  §  112 
(2),  §  131,  requiring  the  consent  of  the  local  authorities  of  an 
adjoining  district  to  the  establishment  of  such  a  business.84  And 
on  the  application  of  the  attorney-general  at  the  relation  of  a  local 
board  and  certain  private  owners  of  property  to  restrain  certain 
acts  until  trial  of  the  action  there  must  be  a  sufficient  showing 
that  the  danger  apprehended  to  health  from  the  establishment  of 
a  smallpox  hospital  in  a  certain  locality  will  in  fact  ensue.80  So, 
a  person  sick  of  an  infectious  or  contagious  disease,  in  his  own 
house  or  in  suitable  apartments  at  a  public  hotel  or  boarding  house 
is  not  a  nuisance.86  But  a  person  may  be  indicted  for  carrying 
along  a  public  highway  a  child  infected  with  smallpox.87 

§  398.  Steam  engines  and  boilers. — A  stationary  steam  engine 
is  not  of  itself  a  nuisance  even  if  erected  and  used  in  the  midst  of 
a  populous  city,  unless  it  interferes  with  the  safety  or  conven- 
ience of  the  public  in  the  use  of  the  streets;  especially  so  where 
it  is  not  used  in  connection  with  any  trade  or  occupation  which 
the  law  pronounces  offensive  or  noxious ;  nor  does  it  become  a 
nuisance  from  the  facts,  singly  or  combined,  that  it  is  liable  in 
common  with  all  other  steam  boilers  to  explode  and  that  it  is  ussd 
in   a    business   in   which   combustible    materials   are    necessarily 

83.  Baltimore     v.     Fairfield     Imp.  84.  Withington      Local      Bd.      of 

Co.,  87  Md.  352,  40  L.  R.  A.  494,  39  Health  v.  Manchester  (C.  A.)    (1893), 

Atl.     1081,    67     Am.     St.     Rep.     30;  2  Ch.   19. 

Youngstown  Twp.  Trustees  v.  Youngs-  85.  Attorney  Gen'l  v.  Manchester, 

town,  25  Ohio  Cir.  Ct.  Rep.  518.  (1893),  2  Ch.  87    (hospitals  declared 

Wliat  constitutes  abandonment  more   beneficial    to    health   of    public 

of  pest  house,  or  hospitals  for  con-  than  injurious). 

tagious  diseases,  and  quarantine  sta-  86.  Boom  v.  City  of  Utica,  2  Barb, 

tions,  by  city,  see  Baltimore  v.  Fair-  (N.  Y.)    104    (trespass  on  case), 

field  Improv.  Co.,  87  Md.  352,  40  L.  87.  Rex  v.  Vantandillo,  4  M.  &  S. 

R.  A.  494,  39  Atl.  1081,  67  Am.  St.  73. 
Rep.    340. 

572 


Eemedies  Continued — Subject  Matter.  §  398 

brought  in  dangerous  proximity  to  the  fire  of  its  boiler,  and  it 
therefore  subjects  buildings  and  merchandise  in  that  vicinity  to 
increased  danger  from  fire,  raises  the  premiums  of  insurance 
thereon,  and  excites  the  fears  of  neighboring  owners  for  the  safety 
and  security  of  their  property.88  So  the  placing  of  a.  steam  boiler 
upon  one's  own  premises  is  in  no  sense  a  nuisance,  and  if,  with- 
out some  fault  or  negligence  on  his  part,  it  explodes  and  causes 
injury  to  his  neighbor  he  is  not  liable.89  It  is  also  held  in  Xew 
Jersey  that  the  owner  of  a  steam  boiler  which  he  has  in  use  on  his 
own  property  is  not  responsible,  in  the  absence  of  negligence,  for 
the  damages  done  by  its  bursting.90  iSTor  will  the  use  of  a  steam 
boiler,  properly  constructed,  be  restrained  as  a  nuisance  by  in- 
junction, although  situated  in  the  dense  part  of  a  city.  The  ap- 
prehension of  danger  from  improper  use  of  a  boiler  is  not  suf- 
ficient. Injury  direct  and  inevitable  must  be  shown.91  Nor  is  a 
steam  engine,  erected  in  a  building  situated  on  a  street  in  a  city, 
under  a  license  from  the  board  of  aldermen,  and  with  the  safety 
plug  required  by  law,  a  nuisance ;  and  the  landlord  is  not  liable 
to  third  persons  for  any  injury  resulting  to  them  from  its  main- 
tenance or  use  by  the  tenant.92  But  where  the  obvious  intention  of 
a  statute  is  to  restrict  the  use  of  stationary  engines  within  certain 
limitations  by  declaring  their  use  without  a  license  a  public  nuis- 
ance, this  does  not  make  the  license  a  bar  to  an  action  for  a  nuis- 
ance, caused  by  the  machinery,  as  distinct  from  the  engine.93  If  a 
statute  regulates  the  use  of  steam  engines  and  furnaces  it  applies 
to  works  subsequently  erected,  as  well  as  to  those  existing  at  the 

88.  Mayor  &  Council  of  Baltimore  92.  Saltonstall  v.  Banker,  8  Gray 
v.  Radecke,  49  Md.  217,  33  Am.  Rep.  (74  Mass.),  195  (action  to  recover 
239    (injunction   to   restrain  removal       possession  of  stores). 

of  engine).  93.  Quinn  v.  Lowell  Electric  Light 

89.  Losee  v.  Buchanan,  51  N.  Y.  Corp.  140  Mass.  106,  3  N.  E.  200 
476,  10  Am.  Rep.  6?3  (action  for  (tort  for  nuisance)  ;  See  Quinn  v. 
damages  for  explosion ) .  Middlesex    Electric    Light    Co.,    140 

90.  Marshall  v.  Welwood,  38  N.  J.  Mass.  109,  3  N.  E.  204  (action  of 
339,  20  Am.  Rep.  394  (suit  for  dam-  tort  for  a  nuisance  for  maintenance 
ages).  and  use  of  steam  engines,  etc.). 

91,.  Carpenter  v.  Cummings,  2 
Phila.  74,  13  Leg.  Int.  76  (motion  for 
special  injunction). 

573 


§  399 


Remedies  Continued — Subject  Matter. 


time  of  its  passage.  And  if  the  use  of  steam  engines  and  furnaces 
has  been  regulated  by  an  order  of  the  municipal  authorities,  duly 
made  and  recorded,  under  a  statutory  provision,  the  burden  is  on 
a  party  who  complains  of  the  works  as  a  nuisance  to  prove  a  non- 
compliance with  the  terms  of  the  order  or  an  unlawful  or  improper 
use  of  the  works.94 


§  399.  Liquor  nuisance — Civil  and  criminal  actions  or  reme- 
dies.— The  question  whether  or  not  the  sale  of  liquors  or  the 
keeping  of  a  place  therefor  constitutes  a  nuisance,  and  the  nature 
and  form  of  the  remedy  depends  almost  entirely  upon  statute.95 


94.  Call  v.  Allen,  1  Allen  (83 
Mass.),  137,  Stat.  184  S.  C.  197  (bill 
in  equity  for  injunction  and  dam- 
ages). 

95.  Statutes  as  to  liquor  nui- 
sance or  affecting  the  same.  See 
Legg  v.  Anderson,  116  Ga.  401,  42  S. 
E.  720,  Act  of  Dec.  19,  1899;  Laugel 
v.  City  of  Bushnell,  96  111.  App.  618, 
aff'd  197  111.  20,  63  N.  E.  1086;  ordin- 
ance under  Hurd's  Rev.  St.  c.  24,  art. 
5,  §  1,  empowering  cities  to  declare 
what  is  a  nuisance,  etc.;  State  v. 
Tabler,  34  Ind.  App.  393,  72  N.  E. 
1039,  Burns  Ann.  Stat.  1901,  §  2153; 
Abrams  v.  Sandholm,  119  Iowa,  583, 
93  N.  W.  563,  code  §§  2347,  2384; 
McCoy  v.  Clark,  109  Iowa,  464,  80  M. 
W.  538,  code,  §§  2408,  2410;  State  v. 
Viers,  82  Iowa,  397,  48  N.  W.  732, 
code  §§  1523,  1543;  Silvers  v.  Tra 
verse,  82  Iowa,  52,  47  N.  W.  888,  11 
L.  R.  A.  804,  code  §  1543;  Littleton 
v.  Fritz,  65  Iowa,  488,  54  Am.  Rep. 
19,  22  N.  W.  641,  Laws  20th  Gen. 
Assemb.  c.  143,  repealed  by  Gen.  St. 
1901,  §  2493;  State  v.  Wester,  67 
Kan.  810,  74  Pac.  239,  Gen.  St.  1901, 
§  2463;  State  v.  Estep,  66  Kan.  416, 
71  Pac.  857,  Gen.  St.  1901,  §§  2463, 
2493;   State  v.  Turner,  63  Kan.  714, 


66  Pac.  1008,  Gen.  Stat.  1901,  §  2493; 
State  v.  Lord,  8  Kan.  App.  55 
Pac.  503,  Gen.  Stat.  1897,  chap.  101, 
§  39;  State  v.  O'Connell,  99  Me.  61, 
58  Atl.  59,  Rev.  Stat.  1883,  c.  17,  §  1; 
Wright  v.  O'Brien,  98  Me.  196,  56  Atl. 
647,  Rev.  Stat.  1883,  c.  17,  §  1; 
Davis  v.  Auld,  96  Me.  553,  53  Atl. 
118,  Pub.  Laws,  1891,  c.  98,  Rev.  Stat, 
c.  17;  State  v.  Piper,  70  N.  H.  282,  47 
Atl.  703,  Pub.  St.  c.  205,  §  5,  as 
amended  Laws  1899,  c.  81 ;  State  v. 
Strichford,  70  N.  H.  297,  47  Atl. 
262,  Pub.  St.  c.  205,  §  4;  State  v. 
Harrington,  69  N.  H.  496,  45  Atl. 
404,  Laws  1887,  c.  77;  State  v.  Col- 
lins, 68  N.  H.  299,  44  Atl.  495. 
Pub.  St.  c.  205,  §§  4,  5;  Beebe 
v.  Wilkins,  67  N.  H.  164,  29 
Atl.  693,  Laws  1887,  chap.  77. 
§  1;  State  v.  Nelson  (X.  Dak.), 
99  N.  W.  1077,  Rev.  Codes,  1899,  § 
7605;  State  v.  Donovan,  10  N.  Dak. 
610,  88  N.  W.  717,  Laws  1901,  c.  178, 
Rev.  Codes  1899,  §  7605;  State  v. 
Bradley,  10  N.  Dak.  157,  86  N.  W. 
354,  Rev.  Codes,  §  7605;  State  v.  Mc- 
Gruer,  9  N.  D.  566,  84  N.  W.  363, 
Rev.  Codes  1899,  §  7605,  construed  in 
connection  with  §§  7594-7597;  State 
v.  Paul,  5  R.  I.  185,  Rev.  Stat^  e.  73, 


574: 


Kemedies  Continued — Subject  Matter. 


§  399 


Under  a  Georgia  decision  the  illegal  sale  of  intoxicating  liquors  is 
a  public  nuisance  affecting  the  whole  community  in  which  the  sale 
of  it  is  carried  on,  and  it  may  be  abated  by  process  instituted  in 
the  name  of  the  State,96  although  it  seems  that  a  dispensary  which 
is  not  a  "  blind  tiger  "  within  the  statute  is  not  subject  to  abate- 
ment or  injunction  even  though  sales  are  made  therein  in  viola- 
tion of  the  law.97  And  where  there  is  no  State  statute  making 
unlawful  sales  of  liquors  a  nuisance,  still,  even  though  the  sales 
violate  the  law  as  to  illegal  selling,  equity  will  not  assume  juris- 
diction to  enjoin  a  dispensary  carrying  on  such  business  in  a  cer- 
tain county.98  But  a  statutory  proceading  lies  to  abate  the  busi- 
ness of  a  pharmacist  who  sells  without  complying  with  statutory 
requirements,  even  though  he  has  a  permit  to  effect  sales  of  liquor 
for  medicinal  purposes.99  So,  where  an  express  company  knows 
the  character  of  the  property  it  is  handling,  even  though  shipped 
C.  O.  D.,  it  may  render  itself  liable  for  keeping  a  liquor  nuisance 
under  an  action  to  enjoin  under  the  code.100     It  is  also  held  that 


§  3;  State  v.  Moore,  49  S.  C.  438,  27 
S.  E.  454,  Dispensary  .Act,  §  22;  Town 
of  Britton  v.  Guy  (S.  Dak.),  97  N. 
W.  1045,  Rev.  Civ.  Code  1903,  §§  2400, 
2403;  State  v.  Chapman,  1  S.  Dak. 
414,  47  N.  W.  411,  10  L.  R.  A.  432,  13 
Crim.  L.  Mag.  228,  Sess.  Laws  1890, 
ch.  101,  §  13;  State  v.  Reymann, 
48  W.  Va.  307,  37  S.  E.  591,  Code,  c. 
32,  §  18,  as  amended  by  Act  1897,  c. 
40;  Hartley  v.  Henretta,  35  W.  Va. 
222,  13  S.  E.  375,  Code,  chap.  32,  § 
18;  State  v.  Collins,  74  Vt.  43,  52 
Atl.  69,  Acts  1898,  No.  90,  §  2;  State 
v.  Wassey,  72  Vt.  210,  47  Atl.  834, 
Act  1898,  No.  90  (in  connection  with 
statutes  prior   thereto). 

Enactment  of  statute — proof — 
character  and  nature  of.  with  re- 
lation to.  See  McLane  v.  Leicht,  69 
Iowa,  401,  29  N.  W.  327. 

Validity  of  statute  when  not 
in  question.  See  State  v.  Jordan, 
72  Iowa,  377. 


96.  Lofton  v.  Collins,  117  Ga.  434, 
61  L.  R.  A.  150,  43  S.  E.  708. 

97.  Cannon  v.  Merry,  116  Ga.  291, 
42    S.   E.   274,   Act   1899. 

98.  Pike  County  Dispensary  v. 
Town  of  Brundidge,  130  Ala.  193,  30 
So.  451. 

99.  State  v.  Davis,  44  Kan.  60,  24 
Pac.  73. 

100.  Latta  v.  United  States  Ex- 
press Co.  (Iowa,  1902),  92  N.  W. 
68,  Code,  §  2384.  The  court  said  in 
this  case :  "  It  is  conceded  that  all 
the  shipments  were  what  is  known  as 
'  C.  O.  D.'  In  State  v.  American 
Exp.  Co.  (decided  at  the  present 
term)  (Iowa),  92  N.  W.  66,  we  held 
that  such  shipments  were  not  pro- 
tected by  the  commerce  clause  of  the 
federal  constitution;  that  the  express 
company  was  the  agent  of  the  seller 
for  the  transmutation  of  the  title  to 
the   goods;    and  that  its  act  in  col- 


575 


399 


Remedies  Continued — Subject  Matter. 


the  manufacture  and  sale  of  intoxicating  liquors  within  the  State 
of  Iowa  without  a  lawful  permit,  though  for  the  purposes  of  ex- 
port only,  renders  the  manufactory  a  nuisance.101  So,  where  with- 
in the  statute  a  place  or  house  where  intoxicating  liquors  are  sold 
at  retail  without  a  license  is  declared  to  be  a  public  nuisance  the 
remedy  by  injunction  nevertheless  exists.102  And  where  the  statute 
so  provides,  a  proceeding  in  equity  brought  to  enjoin  a  liquor 
nuisance  is  to  be  governed  by  the  general  rules  of  equity  pro- 
cedure; but  it  is  not  subject  in  every  respect  to  the  strictness  of 
equity  pleading.108  A  suit  for  damages  also  lies,  as  for  an  action- 
able nuisance,  at  the  instance  of  near-by  property  owners,  against 
a  saloon  established  in  a  residential  locality,  including  buildings 
devoted  to  religious  and  educational  purposes.104 


lecting  the  purchase  price  for  the 
seller  was  unlawful.  There  is  no 
doubt  that  the  defendants  in  this  case 
knew  the  character  of  the  property 
they  were  handling,  and  no  reason 
appears  for  not  holding  them  liable 
for  the  nuisance  created."  See  also 
Dosh  v.  United  States  Express  Co. 
(Iowa,  1904),  99  N.  W.  298.  Ex- 
amine 93  N.  W.  571. 

1.01.  Craig  v.  Werthmueller,  Y8 
Iowa,  598,  43  N.  W.  606. 

Where  permit  exists  and  po- 
lice regulations  not  violated  no  in- 
junction issuable.  Lewis  v.  Behan, 
28  La.  Ann.  130.  Examine  Pearson  v. 
International  Distillery,  72  Iowa, 
348.  See  as  to  legalized  nuisances 
generally  §§  67,  et  seq.,  herein. 

1.02.  Town  of  Britton  v.  Guy  (S. 
Dak.,  1904),  97  N.  W.  1045  (action 
for  injunction  by   town). 

When  equity  has  jurisdiction. 
See  further,  Hill  v.  Dunn  (Iowa, 
1902),  90  N.  W.  705;  McLane  v. 
Leicht,  69  Iowa,  401,  29  N.  W.  327. 
See  note  to  §  416,  herein,  as  to  judg- 
ment, decree,  orderr  and  statutes. 

Statute   may  validly  authorize 


suit  in  nature  of  equity  to  abate 
liquor  nuisance.  Eilenbecker  v. 
Plymouth  County  Dist.  Ct.,  134  U. 
S.  31,  10  Sup.  Ct.  R.  424,  33  L.  Ed. 
801. 

Conviction  a  prerequisite  to 
injunction.  See  Hartley  v.  Hen- 
retta,  35  W.  Va.  222,  13  S.  E.  375, 
W.  Va.  Code,  chap.   32,   §    18. 

Where  statute  provides  cer- 
tain remedies  only  and  injunction 
is  not  one  of  them  it  will  not  issue. 
Northern  P.  R.  Co.  v.  Whalen,  149  U. 
S.  157,  13  Sup.  Ct.  822,  37  L.  Ed. 
686,  Wash.  Terr.  Code,  §  2059. 

Second  injunction  for  differ- 
ent location.  See  Hill  v.  Dunn, 
(Iowa,  1902),  90  N.  W.  705. 

As  to  ground  for  opening  de- 
fault judgment  in  proceeding  to 
abate  liquor  nuisance,  see  State  v. 
Casey,  9  S.  D.  436,  69  N.  W.  585. 

103.  Wright  v.  O'Brien,  98  Me. 
196,  56  Atl.  647,  R.  S.  (1883),  c.  17. 
§  1,  as  amended  by  ch  98  of  Public 
Laws,  1891.  Examine  Lord  v.  Chad- 
bourne,  42  Me.  429,  66  Am.  Dee.  290; 
Black  v.  McGilvery,  38  Me.  287. 

104.  Haggart  v.  Stehlin,  137  Ind. 


576 


Remedies  Continued — Subject  Matter.  §  400 

§  400.  Same  subject. — A  public  and  disorderly  liquor  and 
store  house  in  a  town  in  and  about  which  dissolute  persons  are 
permitted,  for  lucre,  to  remain  at  night  and  in  the  day  time, 
drinking,  tippling,  carousing,  swearing,  hallooing,  etc.,  to  the 
damage,  disturbance,  etc.,  is  a  public  nuisance  by  common  law 
and  the  keeper  of  it  is  indictable.105  And  if  a  person  licensed  to  re- 
tail spirituous  liquors  causes  and  procures,  for  lucre,  evil-disposed 
persons  to  congregate  in  and  about  the  house  in  which  the  liquor- 
are  sold,  and  permits  them  to  remain  there  drinking,  cursing, 
blackguarding,  fighting,  etc.,  the  house  is  a.  public  nuisance,  and 
the  keeper  of  it  is  indictable.106  But  where  all  places  where  in- 
toxicating liquors  are  sold,  bartered,  or  given  away,  in  violation 
of  law ;  also  all  places  where  persons  are  permitted  to  resort  for 
the  purpose  of  drinking  intoxicating  liquors  as  a  beverage ;  and  also 
all  places  where  intoxicating  liquors  are  kept  for  sale  or  delivery 
in  violation  of  law,  whether  they  are  sold,  bartered,  or  delivered, 
or  not,  are  common  nuisances  under  the  statute ;  it  is  the  illegal 
sale,  or  the  illegal  keeping,  or  the  permission  for  persons  to  resort 
to  a  place  for  the  drinking  of  intoxicating  liquors  as  a  beverage  that 
makes  the  common  nuisance,  and  when  either  one  or  all  are  proved 
the  offense  is  made  out.107  And  under  the  North  Dakota  statute,108 
it  is  not  the  selling,  or  keeping  for  sale,  or  the  resorting  for  the 
purpose  of  drinking,  that  constitutes  a  nuisance,  but  it  is  the 
keeping  of  the  place  where  any  or  all  these  things  are  done.  To  be 
the  keeper  of  a  liquor  nuisance  so  as  to  subject  the  place  to  con- 
demnation as  such,  the  person  must  be  an  occupant  under  some 
claim  of  right  and  not  a  mere  transient  and  naked  trespasser 
therein ;  and  under  the  statute  the  finding  of  intoxicating  liquor 

43,  22  L.  R.  A.  577,  29  N.   E.    1073,  If    statute     prohibits     in    sub- 
Howard,  C.  J.,  dissenting.  stance    the  sale   of  malt   liquors   or 

1.05.  State  v.    Bertheol.  6   Blackf.  intoxicating    liquors,    it    is    absolute 

(Ind.)  474,  39  Am.  Dec.  442   (a  case  and  does  not  depend  upon  the  amount 

of   indictment).  of  alcohol  which  the  malt  liquor  con- 

106.  State  v.   Mullikin,   8  Blackf.  tains.     State  v.  O'Connell,  99  Me.  61, 

(Ind.)  260  (a  cape  of  indictment).  58  Atl.  59,  Rev.  Stat.   1883,  c.  27,  § 

1.07.  State  v.  Chapman,  1  S.  Dak.  33,  c.  17,  §   1. 

414,  47  N.  W.  411,  13  Crim.  L.  Mag.  108.  Rev.  Codes,  1899,  §  7605. 
228,  10  L.  R.  A.  432,  Dak.  Sess.  Laws 
1890,  chap.  101,  §  13. 

577 


§  401         Remedies  Continued — Subject  Mattek. 

on  the  premises  occupied  by  defendant  is  prima,  facie  evidence  of 
the  existence  of  a  nuisance.109  But  in  that  State  a  place  of  busi- 
ness where  intoxicating  liquors  are  sold  in  violation  of  the  statute 
is  a  common  nuisance  whether  such  liquors  were  or  were  not 
drunk  on  the  premises  with  the  knowledge  or  consent  of  the 
seller.110 

§  401.  Same  subject. — Liquors  need  not  be  kept  within  a  house 
to  render  it  a  nuisance  where  it  is  such  under  the  statute,  if  used 
for  the  sale  of  intoxicating  liquors.111  But  the  mere  erection  of 
screens  and  other  devices  cannot  be  said  to  be  as  a  matter  of  law 
a  nuisance,  no  matter  what  the  motive  for  their  erection  and  main- 
tenance may  be.  But  the  maintenance  of  a  public  place  equipped 
with  devices  intended  to  make  the  violation  of  law  comparatively 
safe  from  criminal  prosecution,  and  in  which  it  is  well  known  the 
criminal  law  is  systematically  violated,  accomplishes  results  which 
constitute  a  nuisance.112  So,  where  several  persons  associate  them- 
selves together  and  each  pays  a  certain  sum  of  money  to  one  for 
the  purpose  of  having  him  procure  and  keep  on  hand  a  stock  of 
intoxicating  liquors  from  which  each  may  secure  a  quantity,  by 
drink  or  by  bottle,  by  paying  therefor,  or  by  having  the  amount 
charged  against  the  money  previously  advanced,  each  delivery 
thus  made  to  any  of  such  parsons,  either  for  cash  or  to  be  charged 
is  a  separate  sale  and  the  place  where  such  business  is  conducted 
is  a  nuisance  under  the  statute,113  and  the  length  of  time  intoxicat- 

1.09.  State,  Kelly,  States  Atty,  v.  112.  State  v.  Tabler,  34  Ind.  App. 
Nelson  (X.  D.,  1904),  99  X.  W.  1077,  393,  72  N.  E.  1039.  Indict- 
Rev.  Codes  1899,  §  7605  (equitable  ac-  ment;  no  statute  in  the  State  mak- 
tion  prosecuted  by  the  States  attor-  ing  a  place  where  liquors  are  sold  a 
ney).  nuisance,  per  se.     See  Burns'  Annot. 

1.10.  State,     Bartlett     v.     Frazer,  Stat.   1901,  §  2153. 

N.  D.  425,  48  N.  W.  343,  Laws  N.  D.  1.13.  State  v.  Peak,  66  Kan.   701, 

c.    110,    §    13.  72  Pac.   237    (a  case   of  conviction). 

Owner's   or  agent's   knowledge  See,  also,  Cohen  v.  King  Knob  Club 

of     sales — allegations    and     proof —  (W.  Va.),  46  S.  E.  799    (a  case  of  a 

when  no  variance,  see  State  v.  Collins,  common  and  public  nuisance,  bill  and 

74  Vt.  43,  52  Atl.  69.  decree). 

111.  State  v.  Viers,  82  Iowa,  397, 
48  N.  W.  732  (a  case  of  an  indict- 
ment). 

578 


Remedies  Continued — Subject  Matter-  §  402 

ing  liquors  are  kept  is  immaterial  where  the  statute  makes  the 
place  where  they  are  sold  or  kept  for  sale  unlawfully  a  common 
nuisance.114  It  is  held  that  the  fullest  and  most  direct  evidence  is 
required  to  convict  for  the  illegal  sale  of  intoxicating  liquors  as  a 
nuisance;  and  that  this  constitutes  a  sufficient  answer  to  the  ob- 
jection that  a  statute  "  is  inconsistent  with  the  provisions  of  the 
Constitution  securing  to  the  accused  the  benefit  of  due  process  of 
law,  and  of  being  confronted  with  witnesses  against  him,  because 
one  may  be  convicted  upon  reputation,  and  upon  proof  that  he  has 
the  facilities  for  committing  the  crime  charged  against  him."  lla 

§  402.  Common  scold. — Under  an  indictment  for  being  a  com- 
mon scold,  it  is  the  habit  of  scolding,  resulting  in  a  public  nuis- 
ance, which  constitutes  the  offense ;  and  whether  the  scoldings  by 
the  defendant  have  been  so  frequent  as  to  prove  the  existence  of 
the  habit,  and  whether  the  habit  has  been  practiced  under  such 
circumstances  as  to  disturb  the  public  peace,  are  held  to  be  ques- 
tions for  the  jury  alone.116  In  a  case  decided  in  1829  it  was  held 
that  the  offense  of  being  a  common  scold  is  not  obsolete  and  cannot 
become  obsolete  as  long  as  a  common  scold  is  a  common  nuisance, 
and  that  the  offense  is  indictable  at  common  law  and  although  the 
punishment  by  ducking  has  become  obsolete  the  offense  still  re- 
mains as  a  common  nuis-ance  and  as  such  is  punishable  by  fine 
and  imprisonment.117 

1,14.  State  v.  Lord,  8  Kan.  App.  620);  id.  Fed.  Cas.  No.  16,  201  (3 
55  Pac.  503  (a  case  of  indictment  Cranch  C.  C.  618),  (a  case  of  indict- 
under  Kan.  Gen.  Stat.  1897,  ch.  101,  ment).  See  further,  United  States  v. 
§  39).  Royall,  4  Cranch   (U.  S.  C.  C),  620; 

115.  State  v.  Paul,  5  R.  I.  185,  Commonwealth  v.  Karris,  101  Mass 
197,  Rev.  Stat.  C.  73,  §  3.  29;  Commonwealth  v.  Foley,  99  Mass. 
Evidence  conflicting  and  insnf-  407 ;  Greenwault's  Case,  4  City  H. 
ficient  no  injunction  will  issue.  See  Rec.  (N.  Y.)  174;  James  v.  Common- 
State  v.  Gegner,  88  Iowa,  748,  56  N.  wealth,  12  S.  &  R.  (Pa.)  220;  Med- 
w-  182-  ford  v.  Levy,  31  W.  Va.  649,  13  Am. 

11.6.  Baker  v.  State,  53  N.  J.  Law.  St.  Rep.  887,  2  L.  R.  A.  368;  Rex  v. 

(24  Vroom)   45,  20  Atl.  858.  Cooper,    2   Strange    1246;    Regina   v. 

1.17.  United  States  v.  Royall,  Fed.  Foxly,  6  Mod.  213,   4  Black.  Comm. 

Cas.   No.    16,    202    (3   Cranch    C.    C.  168. 


579 


§  403         Eemeuies  Continued — Subject  Matter. 


§  40-3.  Fences  and  structures  generally.1173 — At  common  law  a 
man  could  build  a  fence  on  his  own  land  as  high  as  he  pleased, 
though  his  neighbor's  light  and  air  would  be  thereby  obstructed.118 
So,  the  erection  of  a  high  board  fence  on  one's  own  land  is  not 
actionable  even  though  light  and  air  are  thereby  excluded  from  a 
dwelling  house,  no  prescriptive  right  existing  to  have  light  and 
air  ;119  and  structures  generally  may  be  erected  by  one  on  his  own 
premises,  even  if  they  are  small,  cheap  and  unsightly,  and  they 
are  not  nuisances  per  se;m  nor  is  a  shed  constructed  on  one's  own 
land  a  nuisance,  though  it  obstructs  light  and  air  ;121  nor  is  an  un- 
safe ceiling  in  an  apartment  in  the  exclusive  possession  of  the  lessee 
plaintiff  a  nuisance;122  nor  is  a  standpipe  a  nuisance  which  will 
subject  the  owner  to  damages  merely  because  its  height  makes  it 
liable  to  lightning  or  to  severe  winds,  or  because  the  ground  near 


11,7a.  See  §§  233  et  seq.,  herein. 

11.8.  Rideout  v.  Knox,  148  Mass. 
368,  372,  19  N.  E.  390,  2  L.  R.  A.  81, 
12  Am.  St.  Rep.  560;  Lord  v.  Lang- 
don,  91  Me.  221,  39  Atl.  552.  See  §§ 
36,  37,  236,  herein. 

That  one  has  a  right  to  erect 
fences  on  his  own  land  and  that  <\ey 
are  not  a  nuisance  per  se,  see  An- 
thony Wilkinson  Live  Stock  Co.  v. 
Mcllquam  (Wyo.  1905),  83  Pac.  364. 

11.9.  Guest  v.  Reynolds,  68  111. 
471,  18  Am.  Rep.  570.  See  Housel  v. 
Conant,  12  111.  App.  (12  Bradw.) 
259;  Russell  v.  State,  32  Ind.  App. 
243,  69  N.  E.  482;  Brostrom  v. 
Lauppe,  179  Mass.  315,  60  N.  E.  785; 
Spaulding  v.  Smith,  162  Mass.  543, 
39  N.  E.  189;  Pickard  v.  Collins,  23 
Barb.    (N.  Y.)    445. 

As  to  easements  of  light  and 
air,  see  §§  36,  37,  herein. 

1.20.  Flood  v.  Consumers  Co.,  105 

111.  App.  559;  Truelock  v.  Morte,  72 

Iowa,  510,  34  N.  W.  307;   Falloon  v. 

Schilling,  29  Kans.  292,  44  Am.  Rep. 

642.     See  Hagerty  v.  McGovern,  187 


Mass.  479,  73  N.  E.  536;  Stilwell  v. 
Buffalo  Riding  Academy,  21  Abb.  N. 
C.  (N.  Y)  472,  4  N.  Y.  Supp.  414. 

121.  Lovell  v.  Noyes,  69  N.  H. 
263,  46  Atl.  25,  Pub.  Stat.  c.  143,  §§ 
28,  29. 

122.  Rushes  v.  Gunsberg,  99  App. 
Div.  417,  91  N.  Y.  Supp.  216  (a  case 
of  action  for  damages ) . 

"'What  may  be  a  nuisance  as  to 
others  may  not  be  a  nuisance 
to  ones  lessee  ...  To  consti- 
tute any  particular  thing  a  legal  nui- 
sance per  se,  apart  from  statute  nui- 
sances, as  between  lessor  and  lessee 
and  the  servants  of  the  lessee,  the 
thing  itself  must  work  some  unlawful 
peril  to  health  or  safety  of  person 
and  property, — as  defective  cesspools, 
imperfect  sewers  and  drains,  walls 
and  chimneys  liable  to  fall,  unguarded 
excavations,     etc."  Whitmore     v. 

Oronto  Pulp  &  P.  Co.,  91  Me.  297, 
307,  39  Atl.  1032,  64  Am.  St.  Rep. 
229,  40  L.  R.  A.  377,  per  Emery,  J. 
(a  case  of  machinery  and  fixtures  as 
between  lessor  and  lessee  or  servant). 


580 


Remedies  Continued — Subject  Matter. 


403 


by  is  made  unhealthy  ;123  nor  is  a  platform  in  an  alley  in  the  rear 
of  a  store  a  nuisance  per  se;m  nor  will  the  erection  of  a  jail  be  re- 
strained ;125  and  a  bill  board  is  held  not  to  be  an  abatable  nuisance 
merely  because  a  city  ordinance  so  provides,126  and  its  destruction 
may  be  enjoined  until  a  hearing  is  had.127 

§  404.  Same  subject  continued. — A  remedy  exists,  where  struc- 
tures erected  on  an  alley  are  nuisances  per  se;m  to  restrain  build- 
ing a  mill;129  where  there  is  a  projecting  or  overhanging  wall;130 
where  a  public  nuisance  is  created  by  enclosing  and  obstructing 
public  free  school  lands;131  where  a  barbed  wire  fence  constitutes 
a  dangerous  structure  as  to  stock  running  in  a  pasture;132  where 
the  statute  gives  a  right  of  action  where  a  fence  nuisance  is  malic- 
iously erected  and  which  interferes  with  the  comfort  and  enjoy- 


123.  Whitfield  v.  Carrollton,  50 
Mo.   App.  98. 

1,24.  Bagley  v.  People,  43  Mich. 
355,  38  Am.  Rep.  192. 

125.  Burwell  v.  Vance  County,  93 
N.  C.  73,  53  Am.  Rep.  454. 

126.  As  to  legalized  and  stat- 
utory  nuisances   generally,    see    §§ 

67  et  seq.,  herein. 

127.  Gunning  System  v.  Buffalo, 
71  N.  Y.  Supp.  155,  62  App.  Div. 
497. 

Motive  to  annoy  must  be  shown 
where  structure  or  sign  board  is 
claimed  as  nuisance  under  Laws  1887, 
c.  91,  Hunt  v.  Coggin,  66  N.  H.  140, 
20  Atl.  250  (action  on  case).  See  § 
43,  herein,  as  to  motive  or  intent  in 
general. 

As  to  belief  of  party  that  act 
lawful  in  erecting  fence  on  highway, 
see  Dyerle  v.  State  ( Tex.  Civ.  App. ) , 

68  S.  W.  104;  Kaney  v.  State   (Tex. 
Civ.  App.),  68  S.  W.  104. 

128.  Ellis  v.  American  Academy  of 
Music,  120  Pa.  St.  608,  15  Atl.  494 
( action  on  the  case ) . 


1.29.  Phillips  v.  Stocket,  1  Overton 
(Tenn.),  200.     See  §  318,  herein. 

1.30.  Meyer  v.  Melzler,  51  Cal.  142; 
Langfeldt  v.  McGratk,  33  111  App.  15S 
(law  imported  damage).  See  Keeler 
v.  Lederer  Realty  Corp.,  26  R.  I.  524, 
59  Atl.  855. 

131.  State,  Templeton  v.  Good- 
night, 70  Tex.  682,  11  S.  W.  119  (pe- 
tition for  mandatory  injunction). 

Cases  of  unlawful  inclosure  of 
government  lands  are  not  applic- 
able, where  none  of  defendant's 
fences  will  prevent  or  obstruct  free 
passage  or  transit  over,  or  through 
such  public  lands,  or  tne  right  of  any 
person  to  peaceably  enter  upon  the 
same  and  settle  thereon,  or  enjoy 
them  in  any  manner  authorized  by 
law.  Anthony  Wilkinson  Live  Stock 
Co.  v.  Mcllquam  (Wyo.  1905).  83 
Pac.    364. 

132.  Winkler  v.  Carolina  &  N.  W. 
R.  Co.,  126  N.  C.  370,  35  S.  E.  621. 
78  Am.  St.  Rep.  663  (civil  action  for 
damages ) . 


581 


§  405         Remedies  Continued — Subject  Matter. 

ment  of  another's  estate,  or  diminishes  his  rents  and  injures  his 
chances  of  rental,  and  so  .even  though  under  some  circumstances 
the  owner  is  not  actually  occupying  the  premises  ;133  and  where  one 
erects  upon  his  own  land  a  board  fence  designed  for  no  purpose  of 
either  ornament  or  use,  and  so  close  to  a  house  on  an  adjoining 
lot  as  to  exclude  light  and  air  from  the  windows  of  the  house  and 
thus  become  a  nuisance,  an  injury  and  damage  to  said  house,  and 
the  only  purpose  in  erecting  the  fence  is  to  injure  the  neighbor 
and  his  property,  and  it  is  erected  from  motives  of  unmixed 
malice  towards  the  neighbor,  who  is  damaged  thereby,  such  person 
will  be  enjoined  from  maintaining  such  a  fence.134 

§405.  Water-closets,  privies,  vaults  and  outhouses.135 — Prop- 
erly constructed  water-closets  and  other  water  fixtures  are  not 
nuisances.135*  So,  a  privy,  as  an  accessory  to  a  well-ordered  resi- 
dence, is  not  a  nuisance  per  se,  but  may  become  so  under  some 
circumstances.  The  question  whether  it  is  a  nuisance  is  a  ques- 
tion of  fact  dependent  upon  the  evidence.136  One  may  not  main- 
tain a  privy  which  percolates  into  his  neighbor's  well  and  renders 
it  foul  and  unfit  for  use.137  And  an  injunction  will  lie  to  pre- 
ent  the  erection  of  a  privy  within  a  few  feet  of  an  adjoining 
owner's  well  and  of  her  dining  room  and  family  bedroom,  such 
privy  being  obnoxious  in  itself  and  calculated  by  its'  use  to  make 

1.33.  Smith   v.  Morse,     148   Mass.  Flaherty  v.  Moran,  81  Mich.   52,  45 

407,  19  N.  E.  393,  Stat.  1887,  c.  348,  N.  W.  381,  8  L.  R.  A.  183;  Burke  v. 

§  2    (actions  of  tort).  Smith,  69  Mich.  380,   37   N.  W.   838 

Statute     within    police     power  (mem.  in  decision:   "In  this  case  the 

and  constitutional  which  makes  erec-  decree    below    being    affirmed    by    an 

tion  of  fence  of  certain  height  a  pri-  equal  division  of  the  court,  nothing  i9 

vate  nuisance   when   made  to  annoy.  decided")  ;  Peck  v.  Bownian,  22  Wkly. 

See  Rideout  v.  Knox,   148  Mass.  368.  L.  Bull.  Ill,  10  Ohio  Dec.  567. 

2  L.  R.  A.  81,  19  N.  E.  390,  12  Am.  135.  See  §  314,  herein. 

St.  Rep.   560    (action  of  tort).  135a.  Allen  v.  Smith,  76  Me.  335 

134.  Kessler  v.  Letts,  7  Ohio  Cir.  (action  on  case). 
Ct.   R.   108.      See,  also,   Peek  v.   Roe,  136.  Teinen  v.  Lally,  10  N.  D.  153, 
110  Mich.  52,  3  Det.  L.  N.  291,  67  N.  86  N.  W.  356   (action  to  abate). 
W.    1080    (board   fence   subserved   no  137.  Haugh's    Appeal,     102  Penn. 
useful    purpose    and    rendered    house  St.  443,  48  Am.  Rep.  193  (bill  for  in- 
damp   and  unhealthy);    Kirkwood  v.  junction). 
Finegan,  95  Mich.  543,  55  N.  W.  457; 

582 


Remedies  Continued — Subject  Matter.  §  406 

the  plaintiff's  residence  almost  if  not  quite  unbearable  as  well  as 
unhealthy,  and  to  endanger  the  health  and  lives  of  plaintiff  and 
family.138  So  the  erection  of  a  privy  with  a  cemented  vault  with- 
in three  and  one-half  feet  of  the  dining  room  of  an  adjoining  lot 
owner  will  be  enjoined  as  a  nuisance  without  reference  to  the 
manner  in  which  the  vault  is  constructed  or  to  the  intention  of  the 
one  constructing  it  to  use  disinfectants.129 

§  406.  Same  subject  continued. — So  a  privy  vault  close  to  a 
cellar  wall  of  a  store  from  which  offensive  matter  percolates 
through  the  privy  wall,  the  soil,  and  into  the  cellar  is  a  nuisance 
which  must  be  abated  by  adopting  a  course  to  prevent  the  escape 
of  such  filth.140  Equity  may  also  compel  the  removal  of  offensive 
outhouses  offensively  near  a  dwelling  house;141  and  it  may  also 
enjoin  the  maintenance  of  a  defective  closet,  and  cesspool  and 
order  the  recovery  of  adequate  damages.142  So  equity  will  restrain 
the  draining  of  public  school  privies  into  a  stream  flowing  through 
a  public  community.143  But  in  case  an  owner  of  property  fails  to 
remove  an  alleged  nuisance  consisting  of  filthy  privies  on  prem- 
ises occupied  by  tenants  under  a  lease,  if  such  offense  is  not  made 
a  misdemeanor  or  penal  offense  by  statute  in  express  terms,  it 
cannot  be  implied  by  the  possible  or  probable  intention  of  a  legis- 
lative body  to  so  make  it.  Criminal  offenses  cannot  be  created  by 
implication.144  In  an  English  case  where  an  application  was  made 
under  §  305  of  the  Public  Health  Act  of  1873  to  a  court  of 
summary  jurisdiction  for  an  order  authorizing  a  local  authority  to 
enter  upon  premises  for  the  purpose  of  making  a  sufficient  water- 

138.  Miley  v.  A'Hearn,  13  Ky.  L.  143.  Board     of     Health     of    New 
Rep.  834,  18  S.  W.  529.  Brighton   v.   Casey,   18  N.   Y.   St.   R. 

139.  Radiean  v.  Buckley,  138  Ind.  251,  3  N.  Y.  Supp.  399.    See  Common- 
582,  38  N.  E.  53.  wealth    v.   Yost,    11    Pa.    Super.    Ct. 

140.  Perrine   v.   Taylor,   43    N.   J.  323. 

Eq.   128,  and  note,   12   Atl.  769    (bill  144.  Waggaman  v.  District  of  Col- 
in equity).  umbia,  16  App.  D.  C.  207;  Act  Cong. 

141.  Cook  v.  Benson,  62  Iowa,  170,  Jany.  25,  1898    (30  Stat.  231),  §   10 
17  N.  W.  470.  (error  to  police  court,  judgment  re- 

142.  Finkelstein   v.  Huner,   79   N.  versed). 
Y.  Supp.  334,  77  App.  Div.  424,  aff'd 

179  N.  Y.  548,  71  N.  E.  1130. 

583 


§  407        Remedies  Continued — Subject  Matter. 

closet,  iii  pursuance  of  the  powers  given  by  §  36,  it  was  held  that 
the  court  had  no  jurisdiction  to  entertain  an  objection  by  the 
owner  of  the  premises  that  such  entry  was  unnecessary  because 
they  were  already  provided  with  sufficient  sanitary  appliances.145 

§  407.  Dams — Civil  and  criminal  remedies. — Equity  will  not 
interfere  to  prevent  the  continuance  of  a  mill  dam  though  by  the 
erection  thereof  waters  have  been  caused  to  flow  back  upon  and 
overflow  plaintiff's  land  where  the  damages  are  of  a  trifling  and 
merely  nominal  character,  but  will  leave  the  parties  to  their 
remedy  at  law.146  And  no  action  lies  for  erecting  a  dam  and 
causing  the  water  to  flow  back  in  the  bed  of  a  stream,  causing  an 
alleged  nuisance,  unless  actual  injury  has  been  sustained.147  But 
where  the  circumstances  justify  such  action  a  perpetual  injunc- 
tion will  lie  to  restrain  the  renewal  of  a  dam  which  has  been 
abated  and  repaired,148  and  a  remedy  also  exists  where  a  person's 
health  or  that  of  his  family  are  injured  ;149  where  a  dam  and  reser- 
voir are  negligently  constructed  and  maintained.100  But  a  dam 
obstructing  the  passage  of  fish  was  not  indictable  at  common 
law.151  In  an  early  Indiana  case  an  indictment  was  filed  against 
certain  persons-  composing  the  trustees  of  the  Wabash  and  Erie 
canal  for  a  nuisance  in  erecting  a  feeder  dam,  etc.,  which  was 
part  of  the  canal.     The  dam  was  erected  under  a,  statute  to  pro- 

145.  Robinson  v.  Sunderland  Corp.  Pitts.  L.  J.  N.  S.  345,  6  L.  R.  A.  737, 
(1899),  1  Q.  B.  751,  68  L.  J.  Q.  B.  N.  25  W.  N.  C.  246,  47  Phila.  Leg.  Int. 
s    330  415,  27  Am.  &  Eng.  Corp.  Cas.  566,  18 

146.  McCord  &  Hunt  v.  Iker,    12  Atl.  1066. 

Ohio    387.  14S.  Stevens  v.   Stevens,  11  Mete. 

As  to  dams  generally,  see  §§  319-  (Mass.)    251,   45   Am.  Dec.   203. 

327    herein.             •  149.  Story  v.  Hammond,  4  Ohio  (4 

147.  Cooper  v.  Hall,  5  Ham.  Ham.),  376  (action  on  the  case  for 
(Ohio)  320  (action  on  the  case).  special  damages  in  consequence  of  a 

When  equity  will  not  enjoin  mill-dam). 
dam.  See  City  of  Rockland  v.  Rock-  150.  Aldworth  v.  Lynn,  153  Mass. 
land  Water  Co.,  86  Me.  55,  29  Atl.  53,  26  N.  E.  229,  10  L.  R.  A.  210,  25 
qoc  Am.  St.  Rep.  608  action  for  dam- 
Threatened  epidemic  from  pol-  ages). 
lnted  water  held  by  dam.  See  151.  Commonwealth  v.  Chapin,  5 
City  of  New  Castle  v.  Raney,  6  Pa.  Pick.  (Mass.)  199,  16  Am.  Dec.  386. 
Co.   Ct.  R.    87,   id.    130   Pa.   546,    20 

584: 


Remedies  Continued — Subject  Matter.  §§  408,  40$ 

vide  for  the  funded  debt  of  the  State  and  for  the  completion  of 
said  canal  to  Evansville.  No  act  of  wantonness  was  shown  in  the 
erection  of  the  dam,  and  it  was  held  that  the  indictment  should 
not  be  sustained.152 

§  408.  Private  way,  right  of  way. — The  rule  that  equity  will 
enjoin  an  obstruction  that  reaches  to  the  substance  and  value  of 
the  estate,  and  goes  to  the  destruction  of  it  in  the  character  in 
which  it  is  enjoyed,  applies  to  an  obstruction  in  an  alley  which 
destroys  a  conceded  right  of  way.153  So  the  obstruction  of  a  pri- 
vate way  is  a  private  nuisance  and  actionable  in  a  proper  pro- 
ceeding,154 and  a  right  of  way  to  which  a  permanent  and  con- 
tinuous injury  is  threatened  may  be  protected  in  equity  by  abate- 
ment of  such  private  nuisance.155  But  a  nuisance  on  a  town's 
private  right  of  way  is  not  indictable.156 

§  409.  Other  special  instances  of  what  is  subject-matter  of 
remedy. — A  disorderly  and  disreputable  theatre  may  be  enjoined 
although  a  common  nuisance.157  So  may  a  prize  fight  ;loS  a  cigar 
store  where  a  slot  machine  is  used  ;159  the  use  of  a  piano  at  night 
in  a  saloon  when  combined  with  noise  of  customers  and  danc- 
ing ;160  feed-lots  constituting  a  nuisance  ;161  uncovered  sand  piles 
close  by  a  residence;162  the  explosion  in  gas  walls  of  nitro-glycer- 
ine  near  dwelling  houses;163  and  while  gas  wells  are  not  nuis- 

152.  Butler  v.  The   State,   6   Ind.  1.58.  Commonwealth  v.  McGovern, 

165.  25  Ky.  L.  Rep.  411,  75  S.  W.  261,  Ky. 

1.53.  Schaidt  v.  Blaul,  66  Md.  141,       Stat.  §  1289. 

5  Cent.  Rep.  580,  6  Atl.  669.  1.59.  Lang  v.  Merwin,  99  Me.  486, 

1.54.  Holmes  v.  Jones,  80  Ga.  659,      59  Atl.  1021. 

7  S.  E.  168;  Salter  v.  Taylor,  55  Ga.  1.60.  Feeney    v.    Bartoldo     (N.    J. 

310;    Code;    Dries   v.   St.   Joseph,    98  Eq.),  30  Atl.   1101. 

Mo.  App.  611,  73  S.  W.  723    (action  1.61.  Baker  v.  Bohannan,  69  Iowa, 

for  damages).  60. 

1.55.  Cadigan  v.  Brown,  120  Mass.  1.62.  Dunsbach  v.  Hollister,  2  N. 
493.  Y.  Supp.  94,  49  Hun,  352,   17  N.  Y. 

156.  Commonwealth     v.     Low,     3  St.  R.  461,  aff'd    132  N.  Y.   602,  44 

Pick.    (Mass.)   409.  N.  Y.  St.  R.  934,  30  N.  E.  1154. 

1.57.  Reeves  v.  Territory,  13  Okla.  163.  People's  Gas  Co.  v.  Tyner,  131 

396,  74  Pac.  951 ;   Wilson's  St.   1903,  Ind.  277,  31  N.  E.  59,  16  L.  R.  A.  443. 

§§  1959,  2302,  2340,  2614,  2650,  3717,  See  §§  382  et  seq.,  herein. 
3718,  3724,  2725,  3727,  4440. 

585 


§  410         Remedies  Continued — Subject  Matter. 

ances  per  se,  yet  whether  they  are  nuisances  to  a  dwelling  house 
and  its  appurtenances  depends  upon  their  location,  capacity  and 
management.  Therefore  where  a,  gas  well  has  such  capacity, 
management  and  location  with  regard  to  a  dwelling  house  and  its 
appurtenances  as  to  materially  diminish  the  value  thereof  as  a 
dwelling  and  seriously  interfere  with  its  ordinary  comfort  and 
enjoyment  it  is  an  abatable  nuisance.  If,  however,  there  is  any 
way  that  such  a  well  cau  be  operated  so  as  not  to  make  it  such  a 
nuisance,  only  the  unlawful  operation  thereof  will  be  enjoined.164 

§  410.  Same  subject  continued. — An  easement  to  lands  under 
tide  waters  may  be  protected.165     And  if  a  wharf  built  or  threat- 
ened to  be  built,  upon  tide  lands,  or  below  the  line  of  low  water 
without  public  authority,  is  or  would  be  injurous  to  commerce  or 
navigation,  and  proceedings  at  law  would  not  be  adequate  to  the 
emergency,  the  erection  may  be  abated  or  enjoined  in  equity,  but 
where  the  wharf  is  not,  or" would  not  be  attended  with  any  such 
result,  the  equitable  jurisdiction  will  fail  and  the  legal  remedy 
must  be  resorted  to.166     An  injunction  also  lies  to  restrain  the 
wrongful  flooding  of  lands  of  another,167  and  to  prevent  the  cor- 
ruption of  waters,168  or  their  pollution  by  sewage.169     In  an  Eng- 
lish case  where  relief  by  injunction  was  sought  against  the  dis- 
charge of  sewage  into  certain  waters  and  one  of  the  questions  was 
whether  the  nature  and  extent  of  the  nuisance,  present  or  pros- 
pective, was  such  as  to  justify  the  court's  interference  and  pre- 
vent the  discharge,  the  court,  per  Turner,  L.   J.,   said :  "  This 
brings  us-  to  the  question  whether  the  nature  or  extent  of  the  nuis- 
ance in  this  case  is  such  that  this  court  ought  to  interfere  by  in- 
junction to  prevent  it.    I  have  throughout  felt  this  point  to  be  one 

164.  McGregor  v.  Camden,  47  W.  168.  Richmond  Manufacturing  Co. 
Va.  193,  34  S.  E.  936.  See  §§  382  et  v.  Atlantic  De  Laine  Co.,  10  R.  I.  106, 
seq.,  herein.  14  Am.  Rep.  658.     See  §  303,  herein. 

165.  Stockham  v.  Browning,  18  N.  169.  Mason  v.  City  of  Mattoon,  95 
J.  Eq.  390.  111.   App.  525.     See   Cilly  v.    Cincin- 

166.  People  v.  Davidson,  30  Cal.  nati,  7  Ohio  Dec.  Reprint,  344.  See 
379,  389.    See  §  275,  herein.  §§  280  et  seq.,  herein. 

167.  Learned  v.  Castle,  78  Cal. 
454,  21  Pac.  11,  18  Pac.  872.  See  §§ 
278,  313,  herein. 

586 


Remedies  Continued — Subject  Matter.  §  411 

of  some  difficulty.  I  adhere  to  the  opinion  which  was  expressed 
by  one  of  the  Lord  Chancellors  in  The  Attorney-General  v.  The 
Sheffield  Gas  Company,170  that  it  is  not'  in  every  case  of  nuisance 
this  court  will  interfere.  I  think  that  it  ought  not  to  do  so  in 
cases  in  which  the  injury  is  merely  temporary  and  trifling,  but  I 
think  that  it  ought  to  do  so  in  cases  in  which  the  injury  is  perma- 
nent and  serious;  and  in  determining  whether  the  injury  is 
serious  or  not,  I  think  regard  must  be  had  to  all  the  consequences 
which  may  flow  from  it.  In  this  particular  case  I  think  regard 
must  not  merely  be  the  comfort  or  convenience  of  the  occupier  of 
the  estates,  which  may  only  be  interfered  with  temporarily  and  in 
a  partial  degree,  but  that  regard  must  also  be  had  to  the  effect  of 
the  nuisance  upon  the  value  of  the  estate,  and  upon  the  prospect  of 
dealing  with  it  to  advantage,  and  I  cannot  but  think  that  the 
value  of  this  estate,  and  the  prospect  of  advantageously  dealing 
with  it,  is  and  will  be  affected  by  the  continuance  of  this  nuis- 
ance. Upon  this  ground  and  upon  the  ground  that  of  the  water 
of  the  brook  being  rendered  unfit  for  the  use  of  the  tenants  and 
occupiers  of  the  estate,  I  think  that  the  interference  of  the  court 
was  due."  m 

§  411.  Other  special  instances  of  what  is  not  subject-matter 
of  remedy. — An  action  for  damages  resulting  from  a  nuisance 
cannot  be  maintained  because  the  branches  of  a  tree,  not  poison- 
ous or  noxious  in  its  nature  upon  the  land  of  the  defendant,  over- 
hang the  plaintiff's  land ;  in  the  absence  of  proof  that  real  and 
actual  damage  has  been  sustained,172  or  that  personal  enjoyment 
is  lessened.173  But  if  such  injury  or  injuries  would  be  sustained 
an  injunction  will  issue  to  prevent  the  planting  of  trees  along  a 
boundary  line.174    The  growth  of  weeds  is  not  a  nuisance  in  itself 

1,70.  3    D.    M.    G.    304,    1    W.    R.  173.  Grandona  v.  Lovdal,  78  Cal. 

185.  611,   21    Pac.   366. 

171.  Goldsmid  v.  Tunbridge  Wells  174.  Brock  v.  Connecticut  &  P.  Pi. 
Improvement  Commissioners,  35  L.  J.  Co.,  35  Vt.  373. 

Ch.  382,  L.  R.  1  Ch.  349,  12  Jur.  (N.  Trees  on  highways,  as  nuisances 

S.)  308,  14  L.  T.  154,  14  W.  R.  562,  and  right  of  municipality  to  remove, 
per  Turner,  L.  J.  See   §§   252,  253,  herein. 

172.  Countryman   v.   Lighthill,  24 
Hun   (N.  Y.),  405. 

587 


§  411         Remedies  Continued — Subject  Matter. 

justifying  an  injunction  ;175  and  a  railroad  terminal  yard  will  not 
be  generally  enjoined;176  nor  will  equity,  at  the  suit  of  a  private 
party,  enforce  by  injunction  a  penal  statute  as  to  Sunday  labor, 
where  the  remedy  by  criminal  prosecution  is  adequate  ;177  nor  is  a 
garage  or  automobile  station  at  a  summer  resort  outside  of  the 
restricted  portion  of  the  premises  a  nuisance  where  such  business 
is  lawful  and  legitimate;178  nor  will  a  garbage  crematory  be  en- 
joined where  carried  on  under  contract  providing  that  it  shall  not 
be  a  nuisance.179  Nor  are  hen  houses,  and  a  yard  connected  there- 
with, nor  the  odors  arising  therefrom,  accompanied  with  the  cries 
of  the  occupants  a  nuisance,  where  although  they  may  have  been 
unpleasant,  yet  they  were  not  physically  uncomfortable  or  unbear- 
able to  persons  of  ordinary  health  and  sensitiveness  or  peculiarly 
irritating  even  to  sensitive  persons,  especially  where  such  hen 
houses  are  maintained  in  a  cleanly  condition  and  cared  for  in  such 
a  manner  as  not  to  affect  injuriously  the  health  of  any  normal  per- 
son living  in  the  neighbourhood  and  the  conditions  existing  on  the 
premises  of  defendant  were  not  shown  to  be  abnormal  or  to  have 
differed  substantially  from  those  usually  found  where  barnyard 
fowls  are  kept.179a  Nor  are  dead  animals  nuisances  per  se  and 
cannot  be  made  such  by  legislative  declaration,  and  while  a  mu- 
nicipality is  clothed  with  ample  authority,  in  the  exercise  of  its 
public  power,  to  protect  the  public  against  nuisances  per  se,  or 
anything  that  is  likely  to  become  an  offensive  and  dangerous 
nuisance,  it  cannot  in  the  absence  of  such  conditions  deprive  the 
owner  of  his  property  in  the  carcass  of  a  dead  domestic  animal 
without  due  process  of  law.179b 

175.  Harndon  v.  Stultz,  124  Iowa,  As  to  burning  dead  bodies  be- 

734,  100  N.  W.  851.  ing  a  nuisance,  see  Reg.  v.  Price,  12 

176.  Georgia  Railroad  &  Bkg.  Co.  Q.  B.  D.  247,   15  Cox  C.   C.  389,  33 
v.  Maddox,  116  Ga.  64,  42  S.  E.  315.  Wkly.  R.  45,  52,  53  L.  J.  M.  C.  51. 

177.  Sparhawk  v.  Union  Pass.  Ry.  179a.  Wade  v.   Miller,    188   Mass. 
Co.    54  Pa.  401.  6,  73  N.  E.  849   (injunction  refused). 

178.  Stein  v.  Lyon,  91  App.  Div.  179b.  City  of  Richmond  v.  Caruth- 
593,  87  N.  Y.  Supp.  125.  era,  103  Va.  774,  50  S.  E.  264. 

179.  Deysher   v.   Reading,    18   Pa. 
Co.  Ct.  611. 


588 


Remedies  Continued — Subject  Matter.  §§  412,  413 

§  412.  Same  subject  continued. — The  purchaser  of  lands,  who, 
in  working  mines  thereon,  strikes  an  abandoned  mine  of  the  ex- 
istence of  which  he  had  no  knowledge  and  inconsequence  thereof 
has  his  mine  flooded,  cannot  sustain  an  action  for  a  nuisance  but 
only  for  a  trespass,  where  it  appears  that  such  abandoned  mine 
was  one  existing  by  reason  of  a  prior  lessee  of  adjoining  premises 
working  over  the  line.180  And  where  the  water  in  the  channel  of  a 
stream  is  stagnant,  even  if  it  is  a  menace  to  the  public  health,  a 
court  of  equity  will  refuse  its  aid  in  compelling  certain  work  to  be 
undone  where  such  method  would  be  wholly  impracticable  and  in- 
effectual to  afford  relief  from  the  conditions  existing  and  might 
result  in  injury  to  another  part  of  the  public  and  complainants 
show  no  special  damage  separate  and  apart  to  them  from  that  sus- 
tained by  the  public,  and  the  question  is  not  one  of  abating  a 
nuisance  to  the  public  health.181 

§  413.  Other  special  instances  of  when  and  for  what  indict- 
ment lies. — Indictment  or  information  lies  for  a  public  nuis- 
ance,182 in  behalf  of  the  public,183  by  the  attorney-general  or  solici- 
tor-general.184 And  the  fact  that  a  penalty  is  provided  by  statute 
for  acts  constituting  a  nuisance  does  not  take  away  the  common 
law  right  of  the  public  to  have  the  offender  indicted  and  the  nuis^ 
ance  removed.185    So  a  statute  may  be  broad  enough  in  its  terms  to 

180.  Williams     v.     Pomeroy    Coal  If  inhabitants  of  three  houses 

Co.,   37   Ohio   St.   583.      See     §    277,  only  are  affected  by  offensive  trade 

herein.  it  is  insufficient  for  indictment.     Rex 

181.  McKee  v.  City  of  Grand  Rap-  v.  Lloyd,  4  Esp.  200. 

ids   (Mich.,  1904),  100  N.  W.  580,  11  184.  People  v.  Gold  Run  Ditch  & 

Det.  L.  N.  259.    See  §  305,  herein.  Mining  Co.,  66  Cal.  138,  4  Pac.  1152, 

182.  People  v.  Gold  Run  Ditch  &  56  Am.  Rep.  80;  Walker  v.  McNelly, 
Mining  Co.,  66  Cal.  138,  56  Am.  Rep.  121  Ga.  114,  48  S.  E.  718;  Attorney 
80,  4  Pac.  1152.  General   v.   Jamaica   Pond   Aqueduct 

183.  Walker  v.  McNelly,   121   Ga.  Corp.,  133  Mass.  361. 

114,  48  S.  E.  718;  Commonwealth  v.  185.  Rennock  v.  Morris,  7  Hill  (N. 

Clarke,   1   A.   K.  Marsh    (Ky.),  323,  Y.),  575;   State  v.  Woodbury,  67  Vt. 

Charlotte  v.  Pembroke  Iron  Works,  82  602,    32    Atl.    495.       See     Cincinnati 

Me.  391,  8  L.  R.  A.  828,  19  Atl.  902.  Railroad    Co.    v.    Commonwealth,    80 

Meaning  of  "public."    See  Jones  Ky.  137;  State  v.  Plunkett,  18  N.  J. 

v.  City  of  Chanute,  63  Kan.  243,  65  L.  5.     Examine  State  v.  Proctor,  90 

Pac.  243.  Mo.  334,  2  S.  W.  472. 

589. 


§  414         Remedies  Continued — Subject  Matter. 

include  as  indictable  all  indictable  nuisances  under  the  common 
law.186 


§  414.  Same  subject  continued. — So  an  indictment  or  infor- 
mation lies  for  obstruction  of  navigable  waters,1"  without  refer- 
ence to  the  quality  of  navigation  or  the  amount  of  damage  ;188  for 
the  obstruction  of  a  public  highway  or  impeding  travel  thereon  ;189 
where  a  fruit  stand  encroaches  upon  a  public  city  street;190  for  a 
nuisance  in  erecting  buildings  near  the  highway  and  dwelling 
houses,  and  there  making  acid  spirit  of  sulphur  whereby  the  air  is* 
impregnated  with  noisome  and  offensive  stinks  to  the  common 
nuisance  of  all  inhabiting  and  passing;191  for  an  advertisement 
needlessly  alarming  the  public;192  for  matters  offensive  to  the 
senses,  though  not  injurious  to  health;193  for  inflicting  punishment 
on  a  servant;194  for  a  pantomime  which  is  an  offense  against  com- 
mon decency  within  the  statute  ;195  and  indecent  exposure  in  pub- 
lic places.196  So  showing  and  keeping  for  exhibition  a  stud  horse 
in  the  streets  of  a  town  is  a  public  nuisance.197  And  profane  lan- 
guage under  certain  circumstances  may  become  a  public  nuisance 


186.  State  v.  De  Wolfe  (Neb.),  93 
N.  W.  746. 

187.  Georgetown  v.  Alexandria 
Canal  Co.,  12  Pet.  (U.  S.)  91.  See 
§§   272  et  seq.,   herein. 

188.  Attorney  Genl.  v.  Londsdale, 
38  L.  J.  Ch.  335,  17  W.  R.  219,  L.  R. 
7  Eq.  377,  20  L.  T.  64. 

189.  Salter  v.  People,  92  111.  App. 
481;  Cr.  Code,  §  221;  Commonwealth 
v.  Allen,  148  Pa.  358,  16  L.  R.  A. 
148,  53  Atl.  1115;  Commonwealth  v. 
Christie,  13  Pa.  Co.  Ct.  149;  State  v. 
Wolfe,  61  S.  C.  25,  39  S.  E.  179;  Cr. 
Code,  §  365.  See  §§  212  et  seq., 
herein. 

Code  penalty  not  recoverable 
in  injunction  suit — obstruction  of 
highway.  Sierra  County  v.  Butler, 
136  Cal.  547,  69  Pac.  418;  Pol.  Code, 
§  2737. 


190.  State  v.  Berdetta,  73  Ind.  185, 
38  Am.  Rep.  117.  See  §§  233-235, 
herein. 

191.  Rex  v.  White,  1  Burr,  333. 
See  chapters  7  and  9,  herein. 

192.  State  v.  Cassidy,  6  Phila.  82. 

193.  Rex  v.  Neil,  2  Car.  &  P.  485, 
31  R.  R.  685. 

194.  Hickerson  v.  United  States,  2 
Hayw.  &  H.  228,  Fed.  Cas.  No.  18,301. 

195.  People  v.  Doris,  14  App.  Div. 
(N.  Y.)   117,  43  N.  Y.  Supp.  571. 

196.  People  v.  Butler,  4  Hun  (N. 
Y.)  636;  Sidney's  Case,  1  Sid.  168. 
See  Miller  v.  People,  5  Barb.  (N.  Y.) 
203;  Rex.  v.  Orchard,  3  Cox's  Cr.  C. 

.248. 

197.  Nolin  v.  Town  of  Franklin,  4 
Yerg.  (Tenn. )  163  (judgment  for 
penalty  under  corporation  law  af- 
firmed). 


590 


Eemedies  Continued — Subject  Matter. 


§  414 


but  is  not  ordinarily  one.198  But  one  of  several  hog-pens  in  a 
neighborhood  is  not  a  ground  for  conviction  because  it  contributed 
in  part  to  the  alleged  nuisance.199  Again,  borough  officers  em- 
powered to  abate  a  nuisance  may  be  indicted  for  neglect  to  abate 
a  sewer  nuisance.200  But  public  picnics  and  dances  are  not  in  their 
nature  nuisances  and  are  not  common  law  nuisances  and  a  village 
ordinance  declaring  them  such,  where  they  are  not  so  in  fact  and 
irrespective  of  their  character  is  void.201  The  merely  carrying  on 
of  an  offensive  trade  is  not  an  indictable  nuisance  unless  it  is  de- 
structive to  the  health  of  the  neighborhood  or  renders  the  houses 
uncomfortable  or  untenantable.202  Nor  is  Sunday  barbering  in- 
dictable,203 although  the  business  of  butchering  may  be,  even 
though  punishable  by  statute.204 


198.  Commonwealth  v.  Linn,  153 
Pa.  22,  24  Pitts.  L.  J.  N.  S.  122,  22 
L.  R.  A.  353,  33  W.  N.  C.  331,  27  Atl. 
843. 

199.  Gay  v.  State,  90  Tenn.  645,  18 
S.  W.  260.     See  §  208,  herein. 

200.  Commonwealth  v.  Bredin,  165 
Pa.  224,  30  Atl.  94,  26  Pitts,  L.  J. 
N.  S.  29,  Pa.  Gen.  Borough  Act,  1851, 
§  2,  subs.  13.     See  §§  330-358,  herein. 

201.  Des  Plaines  v.  Poyer,  123  III. 
348,  14  N.  E.  677,  12  West  Rep.  760, 
5  Am.  St.  Rep.  524  (appeal  from 
criminal  court). 


As  to  exhibitions,  plays,  sports, 

etc.,  see  §§  109,  115,  123,  125,  herein. 
Municipal    powers    and    liabil- 
ities,   see   chapter   15,   herein. 

202.  Rex  v.  Davey,  5  Esp.  217. 

203.  State     v.      Lorry,     7      Baxt. 
(Tenn.)    95,  23   Am.   Rep.   555. 

204.  State    v.     Woodbury,    67   Vt. 
602,  32  Atl.  495 ;  Rev.  L.  §  3923. 

Slaughter    bouses.      See  §§     126- 
129,  herein. 


591 


CHAPTER  XIX. 

Remedies  Continued — Parties,  Defenses  and  Damages. 

SUBDIVISION  I. 

ESSENTIALS  OF  JURISDICTION  AND  REMEDY. 

Section  415.  Essentials  of  equitable  jurisdiction,  remedy  or  relief. 

416.  Same  subject — Rulings  and  instances. 

417.  Whether  establishment  at  law  of   right  a  prerequisite  to  equi- 

table relief. 

418.  Same  subject — Early  rulings  and  instances. 

419.  Prospective  or  threatened  nuisance — Apprehended  injury. 

420.  Same  subject — Other  statements  or  forms  of  rule. 

§  415.   Essentials  of  equitable  jurisdiction,  remedy  or  relief. — 

Outside  of  those  statutes  which  confer  equitable  jurisdiction  or 
give  an  equitable  remedy  or  relief,  as  may  be  instanced  by  the  case 
of  a  liquor  nuisance,1  the  controlling  principles  are  that  equity  will 


1.  See  §§   3G5,  399-401,  herein. 

Statutory  remedy  followed— 
Equitable  relief  denied.  —  "The 
bill  is  to  have  certain  buildings  in  the 
city  of  Pittsburgh,  adjoining  Second 
avenue,  declared  to  be  a  public  nui- 
sance, and  to  require  defendants  to 
put  them  in  safe  condition  or  remove 
them. 

"Findings  of  Fact.— 1.  The  bill 
was  filed  June  11,  1904,  and  at  that 
time  defendants  were  and  still  are 
the  owners  of  a  row  of  frame  build- 
ings on  the  line  of  Second  avenue, 
which  are  three  stories  in  height 
in  front  and  one  story  in  the  rear, 
occupying  practically  all  the  space 
between  the  street  and  the  hill. 
These    houses    are    framed    together 


and  are  under  one  roof,  but  form 
eight  separate  dwellings.  When  orig- 
inally built  they  were  two  stories  in 
height,  but  many  years  ago  Second 
avenue  was  cut  down  a  considerable 
number  of  feet,  and  a  third  story  was 
built  under  the  building  as  it  existed 
before  the  cut.  2.  No  evidence  was 
offered  showing  the  exact  date  at 
which  these  houses  were  built,  but 
they  are  not  less  than  75  years  old, 
and  perhaps  considerable  more.  No 
repairs  have  been  put  upon  any  of 
these  houses  for  eight  or  ten  years. 
The  roof  is  so  far  decayed  as  to  let 
water  into  every  part  of  the  prem- 
ises. The  building  is  out  of  plumb 
about  one  inch  at  one  end  and  some- 
what less  at  the  other.    A  part  of  the 


592 


Remedies,  Parties,  Defenses  and  Damages. 


415 


interfere  where  tlie  injury  or  mischief  are  irreparable  and  there 
exists  no  adequate  remedy  at  law  or  no  redress  at  law  wherein  the 
damages  can  be  admeasured,  or  where  there  can  be  no  adequate 
compensation  in  damages*,  or  where  such  exercise  of  jurisdiction 
is  necessary  to  prevent  multiplicity  of  suits,  or  oppressive,  pro- 
tracted,   expensive    and   interminable   litigation.      An   injunction 


stone  wall  under  the  one  end  of  the 
houses  has  fallen  down.  The  front 
of  the  houses  is  supported  by  posts, 
which  are  re-inforced  by  a  stone 
wall  built  between  the  posts.  About 
the  middle  of  the  row  (which  is 
about  100  feet  long),  in  the  rear, 
water  from  the  hill  has  undermined 
part  of  the  wall  which  supported  the 
third  story,  and  caused  about  30  feet 
in  length  of  the  row  to  sink  some 
feet,  and  broken  the  floors  and  par- 
titions at  this  place.  Between  each 
of  the  eight  tenements,  there  is  a 
large  brick  chimney,  which  helps  to 
support  the  buildings,  and  one  of 
these  chimneys  has  sunk  so  as  to 
break  the  floors  and  partitions  near 
it.  3.  At  the  time  of  the  filing  of  the 
bill,  the  house  wa3  and  had  been  for 
many  years  inhabited  by  a  very  low 
class  of  people,  most  of  them  being 
tenants  of  single  rooms,  and  the 
place  had  long  had  a  very  bad  repu- 
tation as  the  resort  of  thieves  and 
prostitutes,  and  has  been  known  for 
many  years  as  the  'yellow  row.'  At 
the  time  of  the  hearing  it  appeared 
that  the  inhabitants  had  all  been 
driven  out  by  the  police,  and  the 
house  is  now  practically  uninhabited, 
and  by  reason  of  the  state  of  dilapi- 
dation above  described,  it  is  not  fit 
for  human  habitation.  4.  The  bill  is 
founded  upon  the  claim  that  the 
building  is  liable  to  collapse  at  any 
time,  and  thereby  endanger  the  lives 


of  passersby  on  the  street,  which  is 
much  travelled.  We  are  unable  to 
find  from  the  evidence  that  there  i3 
any  danger  of  the  house  falling  upon 
the  street.  The  uncontradicted  evi- 
dence is  that  the  house  is  framed 
with  white  pine  in  the  old-fashioned 
way,  with  mortises  and  tenons,  and 
the  timbers  reasonably  sound,  and 
the  building  very  little  out  of 
plumb  considering  its  height  and 
age.  5.  The  building  inspectors  of 
the  city  of  Pittsburgh  examined  the 
building  in  question  and  condemned  it 
as  dangerous  to  the  public,  and  noti- 
fied John  Nicholson,  Jr.,  one  of  the 
defendants,  and  the  only  one  upon 
whom  notice  could  be  readily  served, 
of  their  action,  and  requested  the  de- 
fendants, through  him,  to  put  the 
building  in  safe  condition. 

"  Conclusions  of  Law. — First.  The 
bill  is  not  founded,  as  we  under- 
stand it,  upon  any  statute  authoriz- 
ing cities  to  condemn  buildings  or  to 
oversee  the  condition  of  buildings  and 
structures  within  the  city,  but  is 
founded  merely  upon  the  general 
power  and  duty  of  the  city  to  take 
proper  proceedings  for  the  abate- 
ment of  nuisances  on  or  adjoining 
the  public  streets  by  which  the  safety 
of  the  public  using  the  same  is 
threatened.  It  is  the  duty  of  the 
city  to  see  that  the  streets  are  safe 
for  public  travel,  and  if  a  building 
or  structure  adjoining  or  near  to  a 


503 


§  415       Remedies,  Parties,  Defenses  and  Damages. 

may,  however,  issue  in  case  of  a  nuisance  per  se,  or  to  prevent  a 
serious  injury  to  health,  or  in  case  of  imminent  danger  or  where 
the  nuisance  is  a  continuing  or  constantly  recurring  one.  But  it  is 
also  determined  in  numerous  cas'es  that  the  right  and  the  injury 
should  be  established  by  satisfactory  evidence ;  that  is,  the  right 
should  be  clear,  manifest  and  strongly  established  and  not  doubt- 
ful, probable,  contingent,  consequential,  remote,  uncertain,  specu- 
lative or  merely  apprehended;  and  that  the  injury  or  damage 
should  be  real,  material,  substantial,  serious,  exceptional,  certain, 
immediate  and  the  danger  imminent ;  or,  as  some  of  the  courts  ex- 
press it,  there  should  be  a  strong  case  of  urgent  or  pressing  neces- 
sity.2 It  is  further  declared  that  equity  will  exercise  caution  in 
abating  or  enjoining  a  nuisance.3 


street  is  in  such  condition  that  there 
is  reasonable  apprehension  of  dan- 
ger that  it  will  fall  upon  the  street, 
it  is  undoubtedly  the  right  and  the 
duty  of  the  city  to  take  measures 
to  have  the  nuisance  abated.  An 
action  at  law,  would,  of  course,  fur- 
nish no  adequate  remedy  under  the 
circumstances,  and  a  bill  in  equity 
would  appear  to  be  the  appropriate 
remedy  for  the  city  upon  such  a 
case.  Having  found,  however,  that 
the  city  failed  to  show  that  the 
building  in  question  is  likely  to  fall 
or  that  there  is  any  substantial  dan- 
ger of  its  falling  upon  the  street,  it 
follows  that  the  city  is  not  entitled 
to  a  decree  in  this  case  that  the 
building  be  removed  or  torn  down. 
As  to  the  fact  that  the  building  is 
unfit  for  human  habitation,  we  are 
of  opinion  that  the  city  is  not  in  this 
form  of  proceeding  entitled  to  any  re- 
lief, but  that  if  the  condition  of  tha 
building  offends  against  police  regu- 
lations as  to  tenements  the  remedy 
provided  by  such  statutory  regula- 
tions must  be  followed.  We  are  of 
opinion,  therefore,  that  the  bill  must 


be  dismissed."  Opinion  per  Shafer. 
J.  City  of  Pittsburgh  v.  Nicholson, 
36  Pitts.  Leg.  J.,  N.  S.  (53  0.  S.) 
185. 

Nature  and  form  of  remedy — 
Statutes.  See  §§  362,  365-367, 
herein. 

2.  Dennis  v.  Mobile  &  M.  Ry.  Co., 
137  Ala.  649,  35  So.  30;  Wright  & 
Rice  v.  Moore,  38  Ala.  593,  82  Am. 
Dec.  731  (continuing  diversion  of 
water)  ;  Rosser  v.  Randolph,  7  Port 
(Ala.),  238,  31  Am.  Dec.  712  (erec- 
tion of  a  mill)  ;  State  v.  City  of 
Mobile,  5  Port  (Ala.),  279,  30  Am. 
Dec.  564;  Peterson  v.  Santa  Rosa, 
119  Cal.  387,  51  Pac.  557;  Yolo 
County  v.  City  of  Sacramento,  36 
Cal.  193  (obstruction  of  navigable 
waters.  If  remedy  inadequate  or  im- 
minent danger  of  irreparable  mis* 
chief  equity  will  interfere)  ;  Middle- 
ton  v.  Franklin,  3  Cal.  238  (erec- 
tion of  steam  engine,  machinery  and 
grist  mill  in  cellar  under  store)  ; 
Morgan  v.  Danbury,  67  Conn.  484, 
35  Atl.  499  (sewage  in  river)  ; 
Gray,  Thomas,  v.  Baynard,  5  Del. 
Ch.    499;  Harlan  &   H.    Co.   v.   Pas- 


594 


Remedies,  Parties,  Defenses  and  Damages. 


416 


§  416.   Same  subject — Rulings  and  instances. — Chancery  has 
the  right  to  exercise  jurisdiction  in  cases  of  nuisance  in  restrain- 


ehall,  5  Del.  Ch.  435  (obstruction  to 
navigation.  Injunction  against  erec- 
tion of  wharf)  ;  Shivery  v.  Streeper, 
24  Fla.  103,  3  So.  865  (livery  stable 
adjoining  hotel)  ;  Thebaut  v.  Canova, 
11  Fla.  143  (erection  of  steam  mill)  ; 
liutler  v.  Mayor,  etc.,  of  Thomasville, 
74  Ga.  570  (laying  sewer)  ;  Deacon- 
ess Home  &  Hospital  v.  Bontjes,  207 
111.  553,  69  N.  E.  748,  L.  R.  A.  215, 
aff'g  104  111.  App.  484  (hospital); 
Flood  v.  Consumers  Co.,  105  111.  App. 
559,  564,  per  Burke,  J.  (building  for 
storage  of  ice,  prayer  for  injunction 
denied,  citing  Lake  View  v.  Letz,  44 
111.  81 )  ;  Duncan  v.  Hayes,  22  N.  J. 
Eq.  25;  People  v.  Condon,  102  111. 
App.  449  (to  restrain  gambling,  pool 
selling,  etc.);  Wahle  v.  Reinbach,  76 
111.  322,  326  (against  construction  of 
privy,  quoting  Wood  on  Nuisances, 
p.  817,  §  770);  Pence  v.  Garrison, 
93  Ind.  345;  Smith  v.  Fitzgerald,  24 
Ind.  316  (flow  of  impure  water  from 
brewery.  Injunction  may  issue,  un- 
der statute,  during  litigation  to  pre- 
vent great  injury);  Laughlin  v.  La- 
masco  City,  6  Ind.  223  (wharf,  relief 
not  allowed  where  compensation  in 
damages)  ;  Bushnell  v.  Robeson,  62 
Iowa,  540,  17  N.  W.  888  (slaughter 
house,  Miller's  Code,  §§  3331,  3386)  ; 
Hahn  &  Harris  v.  Thornbury,  7  Bush. 
(70  Ky.)  403;  Dumesnil  v.  Dupont. 
18  B.  Mon.  (57  Ky.),  800,  68  Am. 
Dec.  750  (erection  of  powder  house)  ; 
Gates  v.  Blincoe,  2  Dana  (Ky.),  158, 
26  Am.  Dec.  440;  Board  of  Health  v. 
Cotton  Mills,  46  La.  Ann.  806,  15  So. 
164  (under  proper  limitations  and 
restrictions  injunction  may  issue  in 
case  of  a  nuisance  per  se)  ;   Sterling 


v.  Littlefield,  97  Me.  479,  54  Atl. 
1108;  Tracy  v.  LeBlanc.  89  Me.  304; 
Varney  v.  Pape,  60  Me.  192;  Reese 
v.  Wright,  98  Md.  272,  56  Atl.  976; 
Cadigan  v.  Brown,  120  Mass.  493 
(Gen'l  Stat.  c.  113,  §  2,  cl.  9)  ;  Dana 
v.  Valentine,  5  Mete.  (46  Mass.)  8; 
Boston  Water  Power  Co.  v.  Boston 
&  W.  R.  Corp.,  16  Pick.  (33  Mass.) 
512  (dam);  Bemis  v.  Uphano,  13 
Pick.  (30  Mass.)  169  (Stat.  1828, 
c.  137,  §  6)  ;  Proprietors  of  Charles 
River  Bridge  v.  Proprietors  of  War- 
ren  Bridge,   6  Pick.    (23   Mass.)    376 

(Stat.  1827,  c.  88);  Wilmarth  v. 
Woodcock,  58  Mich.  482,  25  N.  W. 
475  (projecting  cornice)  ;  Learned  v. 
Hunt,  63  Miss.  373;  Green  v.  Lake, 
54  Miss.  540,  28  Am.  Rep.  :>73;  Gwin 
v.  Melmoth,  1  Freem.  Ch.  (Miss.) 
505;  Rice  v.  Jefferson,  50  Mo.  App. 
464;  Cheeseman  v.  Hale  (Mont., 
1905),  79  Pac.  254  (action  for  both 
legal  and  equitable  relief  and  ques- 
tion of  right  of  trial  by  jury)  ;  Burn- 
ham  v.  Kempton,  44  N.  H.  78;  Dover 
v.  Portsmouth  Bridge,  17  N.  H.  200; 
Beach  v.  Sterling  Iron  &  Z.  Co.,  54 
N.  J.  Eq.    (9  Dick.)    65,  33  Atl.  286 

(discoloration  of  water  to  injury  of 
manufacturer  of  white  tissue  paper)  ; 
Raritan  v.  Port  Reading  R.  Co.,  49 
N.  J.  Eq.  11,  23  Atl.  127;  Newark 
Aqueduct   Board   v.   City  of   Passaic. 

45  N.  J.  Eq.  393,  18  Atl.  106.     Aff'd 

46  N.  J.  Eq.  552,  20  Atl.  54;  Car- 
lisle v.  Cooper,  21  N.  J.  Eq.  576; 
Babcock  v.  New  Jersey  Stockyard  Co.. 
20  N.  J.  Eq.  296;  Holsman  v.  Boiling 
Spring  Bleaching  Co.,  14  N.  J.  Eq. 
335;  Jersey  City  Water  Comma,  v. 
City  of  Hudson,  13  N.  J.  Eq.  420;  Za- 
briskie  v.  Jersey  &  B.  R.  Co.,  13  N. 


595 


§  416      Remedies,  Parties,  Defenses  and  Damages. 

iug  the  exercise  or  erection  of,  and  in  some  instances  to  abate,  that 
from  which  irreparable  injury  to  individuals  or  great  public  in- 


J.  Eq.  314;  Wolcott  v.  Melick,  11  N. 
J.  Eq.  204,  66  Am.  Dec.  790 ;  Davidson 
v.  Isham,  9  N.  J.  Eq.  186 ;  Tichemor  v. 
Wilson,  8  N.  J.  Eq.  197;  Vanwinkle 
v.  Curtis,  3  N.  J.  Eq.  422 ;  Robeson  v. 
Pettinger,  2  N.  J.  Eq.  57,  32  Am.  Dec. 
412;  Martin  v.  City  of  New  York,  77 
N.  Y.  Supp.  1013  (depositing  gar- 
bage. Injunction  pendente  lite)  ; 
Shulz  v.  Albany,  59  N.  Y. 
Supp.  235,  42  App.  Div.  437 
(sewer)  ;  Morgan  v.  Binghamton, 
102  X.  Y.  500,  7  N.  E.  424,  3  Cent. 
Rep.  648  ( sewers )  ;  Abendroth  v. 
Manhattan  R.  Co.,  7  N.  Y.  St.  Rep. 
43;  Davis  v.  Lambertson,  56  Barb. 
(N.  Y.)  480;  Knox  v.  City  of  New 
York,  55  Barb.  (X.  Y.)  404,  38  How. 
Prac.  67;  Gilbert  v.  Mickle,  4  Sandf. 
Ch.  (N.  Y.)  357  (libelous  placard); 
City  of  Rochester  v.  Curtis,  Clark  Ch. 
tX.  Y.)  336;  Van  Bergen  v.  Van 
Bergen,  3  Johns.  Ch.  (N.  Y.)  282; 
Attorney-General  v.  Utica  Ins.  Co.,  2 
Johns.  Ch.  (N.  Y.)  371;  Reyburn  v. 
Sawyer,  135  N.  C.  328,  65  L.  R.  A. 
930,  47  S.  E.  761;  Vickers  v.  City  of 
Durham,  132  N.  C.  880,  44  S.  E.  685 
(sewage  discharged  on  premises)  ; 
Ellison  v.  Town  of  Washington 
Com'rs,  58  N.  C.  57,  75  Am.  Dec.  430  •, 
Simpson  v.  Justice,  43  N.  C.  115; 
Bradsher  v.  Lea's  Heirs,  38  N.  C. 
301;  Barnes  v.  Calhoun,  37  N.  C. 
199;  Citizens  of  Raleigh  v.  Hunter, 
16  N.  C.  12;  Attorney-General  v. 
Blount,  11  N.  C.  384,  15  Am.  Dec. 
526;  McCord  &  Hunt  v.  Iker,  12 
Ohio,  287;  McClung  v.  North  Bend 
&  C.  Co.  (Ohio),  31  Ohio  L.  J.  9; 
West  v.   Ponca  City  Milling  Co.,    14 


Okla.  646,  79  Pac.  100;  Sullivan  v. 
Jones  &  Laughlin  Steel  Co.,  208  Pa. 
540,  57  Atl.  1065  (blast  furnaces); 
Mirkil  v.  Morgan,  134  Pa.  144,  25  W. 
N.  C.  532,  16  Atl.  628,  47  Phila.  Leg. 
Int.  308;  Mowday  v.  Moore,  133  Pa. 
598,  47  Phila.  Leg.  Int.  290,  25  W.  N. 
C.  529,  19  Atl.  626,  20  Pitts.  L.  J.  N. 
S.  469;  Appeal  of  Richards,  57  Pa. 
105,  98  Am.  Dec.  202;  Rhodes  v. 
Dunbar,  57  Pa.  274,  98  Am.  Dec. 
221;  Scott  v.  Houpt  (Pa.),  8  Kulp. 
42;  Humphrey  v.  Irvin,  3  Pa.  Cas. 
272,  6  Atl.  479  (action  on  case  for 
damages,  Act  May  2,  1876,  P.  L.  95. 
Multiplicity  of  suits)  ;  Dallas  v. 
Ladies'  Decorative  Art  Club  of  Phila. 
4  Pa.  Co.  Ct.  340;  Campbell  v.  Scho- 
field  (Pa.),  29  Leg.  Int.  325;  Hough 
v.  Dotlestown,  4  Brewst.  (Pa.)  333; 
Grey  v.  Ohio  &  P.  R.  Co.,  1  Grant 
Cas.  (Pa.)  412;  Commissioners  of 
Moyamensing  v.  Long,  1  Pars.  Eq. 
Cas.  (Pa.)  143;  Biddle  v.  Ash,  2 
Ashm.  (Pa.)  211;  State  v.  City  Coun- 
cil of  Charleston,  11  Rich.  Eq.  (S. 
C.)  432;  Ducktown  Sulphur,  Cop- 
per &  Iron  Co.  v.  Fain,  109 
Tenn.  (1  Cates)  56,  70  S.  W. 
813  (sulphur  works);  Lassater  v. 
Garrett  4  Baxt.  (63  Tenn.)  368 
(Code  §  3403);  Wall  v.  Cloud,  3 
Humph.  (22  Tenn.)  181;  Vaughn  v. 
Law,  1  Humph.  (20  Tenn.)  123; 
State  v.  Patterson,  14  Tex.  Civ.  App. 
465,  44  Cent.  L.  J.  162,  37  S.  W.  478; 
Thornton  v.  Grant,  10  R.  I.  477,  14 
Am.  Rep.  701  (wharf)  ;  Wingfield  v. 
Crunshaw,  4  Hen.  &  M.  (Va.)  474; 
Ingersoll  v.  Rosseau,  35  Wash.  92  76 
Pac.   513;      Powell   v.    Bentley   &  G. 


596 


Remedies,  Parties,  Defenses  and  Damages.       §  416 

jury  will  ensue,  and  in  the  case  of  a  public  nuisance  this  rule  ap- 
plies independent  of  the  concurrent  jurisdiction  to  remedy  by  in- 
dictment.   Equity  will  also  interfere  to  prevent  irreparable  injury 
before  a  court  of  law  can  act  definitely ;  to  avoid  protracted  and 
expensive  litigation  or  where  the  fact  of  nuisance  is  placed  beyond 
a  doubt.4    If  the  injury  complained  of  is  the  threatened  doing  by 
a  party  upon  his  own  land  of  an  act  which  would  result  through 
gravitation  in  a  continuous  or  constantly  recurring  injury  to  the 
plaintiff's  land  amounting  to  a  nuisance,  and  full  compensation 
for  the  entire  injury  which  would  be  thus  inflicted  can  not  be  ob- 
tained in  an  action  at  law,  a  court  of  equity  will  afford  relief  by 
injunction.     This  rule  applies  to  prevent  the  construction  of  a 
drain  or  channel  into  which  to  turn  waters  of  a  large  stream,  which 
would  overtax  the  capacity  of  another  drain  or  channel  and  so  sub- 
merge and  injure  the  lands  drained  by  the  latter.5     And  where 
there  is  an  injury  by  fouling  the  waters  of  a  creek  by  permitting 
sewage  to  flow  therein  at  intervals  in  substantial  quantity  so  that 
the  water  is  polluted  and  rendered  unfit  for  use  and  at  times  of- 
fensive to  the  senses  but  not  injurious  to  health,  yet  it  is  a  partial 
obstruction  to  the  free  use  and  enjoyment  by  plaintiff  of  her  land, 
and  it  would  be  difficult  to  compute  the  damage,  and  an  injunction 
is  necessary  to  prevent  a  multiplicity  of  actions,  such  facts  warrant 
the  award  of  a  perpetual  injunction.6     So,  where  plaintiff  owns 
valuable  and  extensive  machinery,  which  gives  employment  to  a 
large  number  of  hands  and  which  is  worked  by  the  water  power 

Furniture  Co.,  34  W.  Va.  804,  12  L.  W.  Va.  421,  46  S.  E.  166  (obstruction 

R.  A.  53,   12  S.  E.   1085,  43  Alb.  L.  of  public  highway  by  railroad  a  case 

J.  433;   Medford  v.  Levy,  2  L.  R.  A.  of  balancing  public  and  private  inju- 

363,   31    W.   Va.    649,    8   S.   E.    302;  ries)  ;   Powell  v.  Bentley  &  G.  Furni- 

Pennsylvania  v.  Wheeling  Bridge  Co.,  ture   Co.,   34    W.    Va.   804,    12    S.   E. 

13    How.     (U.    S.)    518;      Parker   v.  1085,   12  L.  R.  A.  53,   43  Alb.  L.  J. 

Winnipiseogie  Lake  Cotton  &  Woolen  433   (a  factory).  See  Clifton  v.  Town 

Mfg.    Co.,    Fed.    Cas.    No.    10,752    (1  of  Weston,  54  W.  Va.  250,  46  S.  E. 

Cliff.  274),  aff'd   (1862)   67  U.  S.   (2  360. 

Black.)  545,  17  L.  Ed.  333;  .Tordeson  4.  State  v.  City  of  Mobile,  5  Port, 

v.  Sutton  (C.  A.),  68  L.  J.  Ch.  N.  S.       (Ala.)   279,  30  Am.  Dec.  564. 
666   (1898),  2  Ch.  614.     Examine  In-  5.  Pence  v.  Garrison,  93  Ind.  345. 

ternational  &  G.  N.  R.  Co.  v.  Davis  6.  Peterson  v.  Santa  Rosa,  119  Cal. 

(Tex.  Civ.  App.),  29  S.  W.  483.  387,  51  Pac.  557. 
3.  Wees  v.  Coal  &  Iron  R.  Co.,  54 

597 


§41G        Remedies.,  Parties,  Defenses  axd  Damages. 

of  a  stream,  a  court  of  equity  will  restrain  by  injunction  a  re- 
peated diversion  of  the  water  and  a  threatened  continuance  of 
such  diversion  by  the  upper  proprietors  by  means  of  a  ditch  on 
their  own  lands1;  and  this  on  the  principle  of  preventing  an  irre- 
parable mischief  and  a  multiplicity  of  suits.7  Again,  although 
formerly  doubted,  it  has  become  a  settled  principle  that  chancery 
will  sustain  a  bill  filed  by  an  individual,  to  enjoin  a  nuisance, 
which  is  public  in  its  character ;  but  it  is  held  that  such  transcend- 
ent power  of  the  court  will  be  exercised  sparingly  and  where  the 
exercise  of  such  power  is  desired  by  a  party  it  must  be  satisfactory 
shown  that  irreparable  injury  will  be  inflicted  incapable  of  being 
adequately  compensated  in  damages  or  which  threatens  materially 
to  impair  the  comfort  of  the  existence  of  those  living  near  it,  a 
strong  and  mischievous  case  of  pressing  necessity  must  exist.8  So 
the  functions  of  a  writ  of  injunction  in  behalf  of  the  public  should 
only  be  exercised  on  the  ground  of  preventing  irreparable  injury, 
interminable  litigation  and  the  protection  of  a  public  right;  and 
their  exercise  is  subject  to  the  same  perils  and  liabilities  as  an  in- 
dividual if  the  thing  abated  is  not  in  fact  a  nuisance.9  But  a  nuis- 
ance will  be  enjoined  where  the  evidence  is  clear  and  certain  and 
the  nuisance  not  only  destroys  the  peace,  quiet  and  comfort  of 
those  living  in  the  residence  of  the  injured  party,  but  likewise 
seriously  and  injuriously  affects  their  health  and  occasions  irre- 
parable injury  within  the  meaning  of  the  law.10  Ordinarily  an 
injunction  will  also  be  granted  when  the  act  or  thing  granted  is 
a  nuisance  per  se,  or  necessarily  will  be  a  nuisance,  and  it  will  be 
denied  when  it  may  or  may  not  be  a  nuisance  according  to  cir- 
cumstances, or  when  the  injury  apprehended  is  doubtful  or  con- 
tingent.11 The  jurisdiction  of  courts  of  equity  over  the  subject- 
matter  is,  however,  not  an  original  jurisdiction.  This  power  was 
formerly  exercised  very  sparingly,  only  in  extreme  cases,  at  least 
not  until  after  the  right  and  question  of  nuisance  had  been  first 

7.  Wright  v.   Moore,   38   Ala.   593,  10.  Deaconess  Home  &  Hospital  v. 
82  Am.  Dec.  731.                                             Bontjes,  207  111.  553,  64  L.  R.  A.  215, 

8.  Rosser    v.     Randolph,     7     Port.       aff'g  104  111.  App.  484   (hospital). 
(Ala.)    238,  31   Am.   Dec.   712    (erec-  11.  Flood   v.   Consumers'    Co.,    105 

tion  of  a  mill).  111.  App.  559,  584,  per  Burt,  J.,  citing 

9.  Board  of  Health  v.  Cotton  Mills,      Lakeview  v.  Letz,  44  111.  81;  Duncan 
46  La.  Ann.  806,  15  So.  164.  v.  Hayes,  22  N.  J.  Eq.  25. 

598 


Remedies,  Parties,  Defenses  axd  Damages.        §  4-16 

settled  at  law.  While  iu  modern  times  the  strictness  of  this  rule 
has  been  somewhat  relaxed,  there  is  still  a  substantial  agreement 
among  the  authorities  tbat  to  entitle  a  party  to  equitable  relief 
before  resorting  to  a  court  of  equity  his  case  must  be  free  and 
clear  from  all  substantial  doubt  as  to  his  right  to  relief.  To  en- 
able him  to  come  into  a  court  of  equity  in  the  first  instance  there 
must  be  a  strong  and  mischievous  case  of  pressing  necessity. u 
Again,  injunctions  are  not  awarded  by  courts  of  equity  for  the 
infringement  of  doubtful  rights,  until  they  have  been  established 
at  law.  But  when  the  right  is  clear  and  the  injury  is  irreparable, 
an  injunction  will  be  awarded,  although  the  right  has  not  been 
established  at  law.13  But  equity  will  not,  it  is  held,  interfere 
where  the  damages  are  of  a  trifling  and  merely  nominal  character, 
and  if  damages  given  in  a  suit  at  law  are  too  small  to  carry  costs 
it  constitutes  no  ground  for  equitable  interference.14  Nor  will 
equity  order  abatement  of  a  nuisance  where  the  right  is  doubtful. 
The  court  has  no  power  to  deal  with  the  manner  in  which  the  pro- 
prietor of  a  business  shall  arrange  a  part  of  his  shop  so  as  to  lessen 
a  noise  where  he  is  not  amenable  to  the  court  by  the  character  of 
the  case  against  him,  as  in  case  the  nuisance  is  not  established.15 
And  it  is  no  part  of  the  court's  duty,  where  the  plaintiff  has  proved 
his  right  to  an  injunction  against  a  nuisance,  to  inquire  in  what 
way  defendant  can  best  remove  it.  The  plaintiff,  unless  removal 
of  injury  is  physically  impossible,  is  at  once  entitled  to  an  in- 
junction, and  it  is  defendant's  duty  to  find  his  own  way  out  of 
the  difficulty,  whatever  may  be  the  inconvenience  or  expense  to 
which  he  may  thereby  be  subjected.16 

12.  Flood  v.  Consumers'   Co.,    105       L.  J.  Ch.  265,   17  W.  R.  240,  19   L. 
111.    App.    559,    564,    per    Burke,    J.       T.   708. 

(building  for  storage  of  ice.     Prayer  Order  or  judgment  for  abate- 

for  injunction  denied).  ment  of  nuisance,  when  proper  and 

13.  Citizens  of  Raleigh  v.  Hunter,  when  not.     See  Ashbrook  v.  Common- 
16  N.  C.    (1  Dev.  Eq.)    12.  wealth,    1    Bush    (Ky.),   139,   89  Am. 

14.  McCord   &   Hunt,   v.    Iker,    12  Dec.   616    (indictment  and   verdict); 
Ohio,  387.  State  v.  Haines,  17   Shep.    (30   Me.) 

15.  Scott  v.  Houpt,  8  Kulp.    (Pa.)  65    (conviction);      Lansborn   v.   Cov- 
42.  ington,  2  Md.  Ch.  409    (private  mii- 

16.  Attorney-Gen'l  v.  Colney  Hatch       sance)  ;  Shepard  v.  People,  40  Mich. 
Lunatic  Asylum,  L.  R.  4  Ch.  146,  38      487    (information;  order  for  destruc- 

599 


417      Remedies,  Parties,.  Defenses  axd  Damages. 


§  417.  Whether  establishment  at  law  of  right  a  prerequisite 
to  equitable  relief. — In  determining  this  question  the  essentials 
of  equitable  jurisdiction  judgment,  decree  or  relief,  elsewhere 
stated,17  are  most  important  and  controlling  factors,  at  least  they 


tion  of  dam  not  justified  except  etc.;  ; 
Crippen  v.  People,  8  Mich.  117  (time 
when  power  of  removal  on  conviction 
must  be  exercised)  ;  State  v.  Noyes, 
10  Fost.  (N.  H.)  279  (indictment, 
under  what  allegations  only  judgment 
to  abate  will  be  ordered)  ;  Taylor  v. 
People,  6  Park.  Cr.  R.  (N.  Y.)  347 
(noxious  trade)  ;  requisite  averments 
for  judgment  on  conviction)  ;  Mun- 
son  v.  People,  5  Park.  Cr.  R.  (N.  Y.) 
16  (requisite  allegations  on  indict- 
ment for  abatement  as  distinguished 
from  personal  judgment)  ;  Mazza  v. 
Hester,  1  Wkly.  C.  Bull.  375,  5  Ohio 
Dec.  430  (judgment  against  tenant 
for  obstruction  to  right  of  way,  when 
erroneous)  ;  State  v.  Paggett,  8 
Wash.  579,  36  Pac.  487  (order  for 
abatement  not  valid  on  employees  con- 
viction. Wash.  Gen.  Stat.  §  2895; 
Wash.  Pen.  Code,  §  118).  See,  fur- 
ther, as  to  decree,  judgment  or  order 
and  form  thereof  the  following  cases: 
People,  Lind  v.  San  Luis  Obispo,  116 
Cal.  617,  48  Pac.  723  (enjoining  pub- 
lic nuisance,  extent  of  order)  ;  Mc- 
Menomy  v.  Baud,  87  Cal.  134,  26  Pac. 
795  (when  injunction  need  not  abate 
entirely  but  may  be  limited)  ;  Sulli- 
van v.  Royer,  72  Cal.  248,  1  Am.  St. 
Rep.  51,  13  Pac.  655  (relief  granted 
in  accordance  with  facts  though  not 
prayed  for)  ;  People  v.  Gold  Ditch  & 
Mining  Co.,  66  Cal.  155,  4  Pac.  1150 
(form  of  perpetual  injunction,  what 
need  not  be  stated)  ;  Morgan  v.  Dan- 
bury,  67  Conn.  484,  35  Atl.  499 
(judgment  against  deposit  of  sewage 
held  not  too  broad  in  view  of  aver- 


ments); Williamson  v.  Yungling,  93 
Ind.  42  (abatement  may  be  ordered)  ; 
Maxwell  v.  Boyne,  36  Ind.  120  (con- 
viction; where  order  of  abatement  is 
proper)  ;  Cromwell  v.  Lawe,  14  Ind. 
234  (damages;  order  for  abatement 
not  as  of  course)  ;  Piatt  v.  Chicago, 
B.  &  Q.  R.  Co.,  74  Iowa,  127,  37  N. 
W.  107  (order  for  abatement  proper 
or  verdict  for  damages)  ;  Richards  v. 
Holt,  61  Iowa,  529,  16  N.  W.  595  (in* 
junction  limited  to  use  constituting 
nuisance)  ;  Fuller  v.  Chicago,  R.  T. 
&  P.  Ry.  Co.,  61  Iowa,  125,  51  N.  W. 
861  (when  order  of  removal  not  war- 
ranted) ;  Bollinger  v.  Com.,  98  Ky. 
574,  17  Ky.  L.  Rep.  1122,  35  S.  W. 
553  ( time  of  making  order  after  over- 
ruling motion  for  new  trial )  ;  Ban- 
non  v.  Rohmeiser,  10  Ky.  L.  Rep.  395. 
9  S.  W.  293  (removal  of  building); 
Koehl  v.  Schoenhausen,  47  La.  Ann. 
1316,  17  So.  809  (how  writ  of  in- 
junction enforced  by  penalty;  (State 
v.  Beal,  94  Me.  520,  48  Atl.  124 
(when  alleged  nuisance  is  only  in 
part;  abatement)  ;  Brightman  v.  In- 
habitants of  Bristol,  65  Me.  426,  20 
Am.  Rep.  711  (when  nuisance  con- 
sists in  use  to  which  building  is  put 
and  not  in  its  location,  abatement 
must  consist  only  in  stopping  such 
use)  ;  Berkshire  Woolen  Co.  v.  Day, 
12  Cush.  (Mass.)  128  (abatement  of 
part )  ;  Bemis  v.  Clark,  1 1  Pick. 
(Mass.)  452  (construction  of  statute 
as  to  issue  of  warrant  to  abate.  Act 
1828,  c.  137,  §  6)  ;  Shepard  v.  People, 
40  Mich.  487  ("order  to  destroy  when 
not   necessary)  ;  Colstrum  v.   Minne- 


600 


Remedies,  Parties,  Defenses  and  Damages. 


417 


have  controlled  a  large  number  of  the  decisions  upon  this  point; 
but  subject  to  certain  exceptions  the  tendency  of  modern  authori- 


apolis  St.  Ry.  Co.,  33  Minn.  516,  24 
N.  W.  225  (injunction  or  abatement 
or  damages  under  Gen.  Stat.  1878,  c. 
75,  p.  44 )  ;  Grant  v.  Schmidt,  22 
Minn.  1  (separate  judgment  when  not 
allowed  in  joint  action)  ;  Learned  v. 
Hunt,  63  Miss.  373  (uncertainty  in 
decree)  ;  Chenango  Bridge  Co.  v. 
Paige,  83  N.  Y.  178,  38  Am.  Rep.  407 
(enjoining  use  and  not  destruction, 
when  proper)  ;  Wilmot  v.  Bell,  78  N. 
Y.  S.  591,  76  App.  Div.  252  (perpet- 
ual injunction  not  proper  under  Codo 
Civ.  Proc.  c.  14,  tit.  1,  art.  7,  §§ 
1660-1663,  judgment  may  award 
damages  or  direct  removal  of  nui- 
sance, or  both)  ;  Rosenheimer  v. 
Standard  Gaslight  Co.,  39  App.  Div. 
482,  57  N.  Y.  Supp.  330  (relief  by 
way  of  injunction  if  justified  by  facts 
instead  of  compensation)  ;  People  v. 
Metropolitan  Tel.  &  Teleg.  Co.,  11 
Abb.  N.  C.  304,  64  How.  Prac.  120 
(abatement,  damages  and  equitable 
relief)  ;  Fleischner  v.  Citizens 
Real  Estate  &  Invest.  Co.,  25 
Or.  119,  35  Pac.  174  (equity 
may  award  relief  and  dam- 
ages even  though  Code  provides  for 
damages  at  law)  ;  Kothenberthal  v. 
City  of  Salem  Co.,  13  Or.  604  (war- 
rant for  abatement  need  not  neces- 
sarily be  awarded  after  verdict  as  it 
may  be  inadequate)  ;  Ankeny  v.  Fair- 
view  Milling  Co.,  10  Oreg.  390  (war- 
rant may  identify  nuisance)  ;  Bar- 
clay v.  Commonwealth,  25  Pa.  503, 
64  Am.  Dec.  715  (order  to  sheriff  to 
abate,  when  erroneous)  ;  City  of  En- 
nis  v.  Gilder,  Tex.  Civ.  App.  74  S.  W. 
585  (sufficiency  of  decree  as  to  city 
dam  and  reservoir)  ;     Price  v.  Oak- 


field  Highland  Creamery  Co.,  87  Wis. 
536,  24  L.  R.  A.  58  N.  W.  1039  (dam- 
ages for  past  injuries  awarded  in 
equity ) . 

Liquor  nuisance— Decree,  judg- 
ment and  order. — Form,  requisites 
and  enforcements  of,  and  statutes. 
See  the  following  cases:  Kissel  v. 
Lewis,  156  Ind.  233,  59  N.  E.  478; 
State  v.  Dominisse  ( Iowa ) ,  99  N.  W. 
561;  Dosh  v.  U.  S.  Exp.  Co.  (Iowa), 
99  N.  W.  298;  Morris  v.  Lowry,  113 
Iowa,  544,  85  N.  W.  788;  State  v. 
Gifford,  111  Iowa,  648,  82  N.  W. 
1034;  State  v.  Bowman  (Iowa),  82 
N.  W.  493;  McCoy  v.  Clark,  109 
Iowa,  464,  80  N.  W.  538;  Merrifield 
v.  Swift,  103  Iowa,  167,  72  N.  W. 
444;  Silvers  v.  Travers,  82  Iowa,  52, 
11  L.  R.  A.  804,  47  N.  W.  888; 
Sweeny  v.  Traverse,  82  Iowa,  720,  47 
N.  W.  889;  State  v.  Adams,  81  Iowa, 
593,  47  N.  W.  770;  State  v.  Estep,  66 
Kan.  416,  71  Pac.  857;  State,  Violett 
v.  King,  46  La.  Ann.  78,  14  So.  423; 
Davis  v.  Auld,  96  Me.  559,  53  Atl. 
118;  Carleton  v.  Rugg,  149  Mass.  550, 
5  L.  R.  A.  193,  22  N.  E.  55;  State  v. 
Piper  (N.  IL),  47  Atl.  703;  State  v. 
Harrington,  69  N.  H.  496,  45  Atl. 
404;  State  v.  McMaster  (N.  D.),  99 
N.  W.  58;  State  v.  Massey,  72  Vt. 
210,  47  Atl.  834;  State  v.  Clark,  62 
Vt.  278,  19  Atl.  981.  See,  also,  §§ 
399-401,  herein. 

Judgment  that  nuisance  be 
abated  can  only  be  rendered 
where  it  appears  that  the  nuisance 
is  continued  to  the  finding  of  the  in 
dictment.  State  v.  Noyes,  30  N.  H. 
279;  State  v.  Hull,  21  Me.  84;  King 
v.  Stead,  8  Durnf.  &  E.  142. 


601 


§  41 7        Remedies,  Parties,  Defenses  and  Damages. 

ties  is  contrary  to  so  much,  of  the  former  rule  as  required  the 
establishment  of  the  legal  right  as  a  prerequisite  to  relief  by  in- 
junction/8 for  the  courts  have  not  refused  equitable  relief  in  cer- 
tain cases,  amongst'  others,  which  are  of  pressing  necessity,  of  im- 
mediate, imminent  actual  danger,  or  of  irreparable  injury,  even 
though  the  right  had  not  been  established  at  law  in  the  first  in- 
stance.19 


Enforcing  judgment  of  abate- 
ment. In  a  Georgia  case  certain 
complainants  obtained  a  decree 
against  the  defendants,  by  which  the 
latter  were  authorized  to  raise  their 
mill-dam  to  a  certain  height,  and  it 
was  provided  that  the  defendants 
should  clear  their  pond  of  all  tim- 
ber. They  were  allowed  six  months 
from  the  rendition  of  the  decree  so 
to  do,  and  if  they  failed  to  clear  the 
pond  of  timber  within  that  time,  it 
was  to  be  abated  as  a  nuisance.  After 
the  expiration  of  the  time  allowed, 
complainants  filed  an  affidavit  with 
the  clerk  of  the  Superior  Court,  stat- 
ing that  defendants  had  failed  to 
clear  their  pond;  and  thereupon  the 
clerk  issued  a  process  directed  to  the 
sheriff,  commanding  him  to  pull  down 
defendants'  dam  and  abate  the  same 
as  a  nuisance.  To  this  process  de- 
fendants filed  an  affidavit  of  ille- 
gality. The  jury  found  in  favor  of 
the  illegality,  and  the  judge  quashed 
the  process.  It  was  held  that  the  clerk 
had  no  power  to  issue  such  process, 
and  whatever  errors  may  have  been 
committed  on  the  trial  of  the  issue, 
the  quashing  of  the  process  was  right, 
and  a  new  trial  would  not  be  granted. 
Wall  v.  Woolbridge,  71  Ga.  256.  See, 
further,  as  to  enforcement  of  decree 
judgment  or  order.  Ames  v.  Cannon 
River  Mfg.  Co.,  27  Minn.  245,  6  N. 
W.  787,  Genl.  Stat.   1878,  c.  75    (ac- 


tion to  abate)  ;  Commonwealth  v. 
Bredin,  165  Pa.  224,  26  Pitts.  L.  J. 
N.  S.  29,  30  Atl.  921  (sentence 
against  officers  of  borough  and  subse 
quent  expiration  of  office)  ;  Common 
wealth  v.  McLaughlin,  120  Pa.  518 
14  Atl.  377,  21  W.  N.  C.  478,  13  Cent 
Rep.  228;  Barclay  v.  Commonwealth 
25  Pa.  503,  64  Am.  Dec.  715;  Coffer 
v.  Territory,  1  Wash.  325,  11  L.  R. 
A.  296,  25  Pac.  632  (conviction; 
house  of  ill-fame). 

17.  See  §  415,  herein. 

18.  Mowday  v.  Moore,  133  Pa.  598, 
611,  19  Atl.  626,  25  Wkly.  N.  C.  529. 
See  Tracy  v.  Le  Blanc,  89  Me.  304,  36 
Atl.  399;  Durant  v.  Williamson,  7  N. 
J.  Eq.  547;  Weber  v.  Miller  (C.  C), 
1  Ohio  Dec.  520. 

19.  'When  not  a  prerequisite 
to  equitable  relief  to  establish 
right  at  law.  See  Ogletree  v.  Mc- 
Quaggs,  67  Ala.  580,  42  Am.  Rep. 
112;  Hundley  v.  Harrison,  123  Ala. 
292,26  So.  294;  City  of  Kewanee  v.  Ot- 
ley,204  111.  402,  411,  68  N.  E.  388; 
Dwight  v.  Hayes,  150  111.  273,  37  N. 
E.  218,  41  Am.  St.  Rep.  367,  aff'g  49 
111.  App.  530;  Dierks  v.  Addison 
Twp.  Highway  Comrs.,  142  111.  197, 
31  N.  E.  496;  Deaconess  Home  &  Hos- 
pital v.  Bontjes,  104  111.  App.  484, 
aff'd  207  111.  553,  69  N.  E.  748;  iliff 
v.  School  Directors,  45  III.  App.  «19; 
Sterling  v.  Littlefield,  97  Me.  479, 
54  Atl.   1108;  Davis  v.  Auld,  96  Me. 


602 


Remedies,  Parties,  Defenses  and  Damages. 


I  L8 


§  418.  Same  subject — Early  rulings  and  instances. — It  is  said 
in  an  early  case  that  where  a  thing  already  exists  which  is  alleged 
to  be  a  nuisance,  it  may  be  a  question  whether  the  court  will  inter- 
fere by  injunction,  before  a  trial  at  law  establishing  the  fact  of 
nuisance;  but  where  the  object  of  the  one  is  to  prevent  the  erection 
of  that  which  will  be  productive  of  injury  serious  and  irreparable, 
if  erected,  the  court  will  pass  upon  the  question,  and  interpose  its 


559,  53  Atl.  118;  Robinson  v.  Baugh, 
31  Mich.  290;  White  v.  Forbes,  Walk. 
Ch.  (Mich.)  112;  Learned  v.  Hunt, 
63  Miss.  373;  Harrelson  v.  Kansas 
City  &  A.  R.  Co.,  151  Mo.  482,  52  S. 
W.  36S;  Whipple  v.  Mclntyre,  69 
Mo.  App.  397;  Stanford  v.  Lyon,  37 
N.  J.  Eq.  94  (examine  Carlisle  v. 
Cooper,  21  N.  J.  Eq.  576)  ;  Beach  v. 
City  of  Elmira,  22  Hun,  158;  Gard- 
ner v.  Newburgh,  2  Johns.  Ch.  162,  7 
Am.  Dec.  526;  Appeal  of  Hacke,  101 
Pa.  245 ;  Shaw  v.  Queen  City  Forging 
Co.,  7  Ohio  N.  P.  254,  10  Ohio  S.  & 
0.  P.  Dec.  107;  Barkan  v.  Knecht  (C. 
P.),  10  Wkly.  Law  Bull.  342;  Smith 
v.  Cummings,  2  Pars.  Eq.  Cas.  (Pa.) 
92;  Spooner  v.  McConnell,  1  McLean 
(U.  S.  C.  C),  337;  Fed.  Cas.  No. 
13,245. 

When  a  prerequisite  to  equi- 
table relief  to  establish  right  at 
law,  see  St.  James  Church  v.  Airing- 
ton,  36  Ala.  546,  76  Am.  Dec.  332; 
State  v.  City  of  Mobile,  5  Port. 
(Ala.)  279,  30  Am.  Dec.  564  (prelim- 
inary injunction )  ;  Flood  v.  Consum- 
ers' Co.,  105  111.  App.  559;  Canal 
Melting  Co.  v.  Columbia  Park  Co.,  99 
111.  App.  215;  Town  of  Lakeview  v. 
Letz,  44  111.  81;  Dunning  v.  City  of 
Aurora,  40  111.  481 ;  Sterling  v.  Lit- 
tlefield,  97  Me.  479,  54  Atl.  1108, 
86  Mo.  55,  29  Atl.  935;  Varney  v. 
Pope,  60  Me.  192;  Porter  v.  Witham, 
5   Shep.    (17  Me.)    292;  Ingraham  v. 


Dunnell,  5  Mete.  (46  Mass.)  118; 
Dana  v.  Valentine,  5  Mete.  (46 
Mass.)  8;  Gwin  v.  Melmoth,  1  Freem. 
Ch.  (Mis.)  505;  Eastman  v.  Ames- 
keag  Mfg.  Co.,  47  N.  H.  71;  Burn- 
ham  v.  Kempton,  44  N.  H.  78;  At- 
torney-General v.  Stewart,  20  N.  J. 
Eq.  415;  Attorney-General  v.  Heis- 
hon,  18  N.  J.  Eq.  410;  Hodgkinson  v. 
Long  Island  R.  Co.,  4  Edw.  Ch.  (N. 
Y.)  411;  Mohawk  Bridge  Co.  v.  Utica 
&  S.  R.  Co.,  6  Paige  (N.  Y.),  554; 
Redd  v.  Edna  Cotton  Mills,  136  N.  C. 
342,  67  L.  R.  A.  983,  48  S.  E.  761; 
Frizzle  v.  Patrick,  59  N.  C.  354; 
Simpson  v.  Justice,  43  N.  C.  115: 
McCord  &  Hunt  v.  Iker,  12  Ohio,  387; 
Foster  v.  Norton,  2  Ohio  Dec.  390; 
New  Castle  (McClain)  v.  Raney,  130 
Pa.  546,  6  L.  R.  A.  737,  20  Pitts  L. 
J.  N.  S.  345,  47  Phil.  Leg.  Int.  415, 
25  W.  N.  C.  246,  27  Am.  &  Eng.  Corp. 
Cas.  566,  18  Atl.  1066;  Rhea  v.  For- 
syth, 37  Pa.  503,  78  Am.  Dec.  441; 
Bell  v.  Ohio  &  P.  R.  Co.,  25  Pa.  161, 
64  Am.  Dec.  687,  1  Grant  Cas.  105, 
2  Pitts.  Leg.  Int.  42;  Grey  v.  Ohio 
&  P.  R.  Co.,  1  Grant  Cas.  412;  Union 
Water  Co.  v.  Enterprise  Oil  Co.  (Pa. 
C.  P.),  21  Pitts.  L.  J.  N.  S.  159; 
Kennerty  v.  Etiwan  Phosphate  Co., 
17  S.  C.  411,  43  Am.  Rep.  607;  Kerk- 
man  v.  Handy,  11  Humph.  (30 
Tenn.)  406,  54  Am.  Dec.  45;  Cald- 
well v.  Knott,  10  Yerg.  (18  Tenn.) 
209. 


603 


§  418      Remedies,  Pakties,  Defenses  and  Damages. 

authority  to  avert  the  threatened  injury,  for  the  matter  cannot  be 
tried  at  law,  and  should  the  court  refuse  its  aid,  there  would  be  no 
remedy.20  So  in  an  English  case  defendant  had  a  soap  and  black- 
ash  manufactory  and  information  was  filed  in  the  name  of  the 
attorney-general  by  the  neighbors1.  A  motion  to  suspend  this 
alleged  nuisance  until  a  trial  at  law  was  refused,  and  Lord  Eldon 
observed,  as  to  what  amounts  to  a  nuisance,  that  some  manufac- 
tories have  been  held  no  nuisance  though  they  may  destroy  the 
whole  comfort  of  life,  as  a  sugar  house,  or  a  brew  house,  or 
making  of  bricks,  which  are  so  in  common  parlance  only,  and  that 
the  court  is  very  cautious  in  granting  injunctions  in  such  cases 
ex  parte,  but  that  the  court  will  abate  a  nuisance  in  a  public  high- 
way or  in  a  harbor.21  But  it  is  declared  in  a  New  York  case  that 
courts  of  equity  have  concurrent  jurisdiction  with  courts  of  law  in 
cases  of  private  nuisance,  and  it  is  not  every  case  of  nuisance  which 
will  authorize  the  exercise  of  the  jurisdiction.  It  rests  upon  the 
principle  of  clear  and  undoubted  right  to  the  enjoyment  of  the 
subject  in  question,  and  will  only  be  exercised  in  case  of  strong 
and  imperious  necessity,  or  where  the  rights  of  the  parties  have 
been  established  at  law  in  order  that  the  mandate  of  the  court  may 
be  certain.22  And,  where  a  mill  was  erected  in  1866,  and  used  in 
the  ordinary  manner  since,  until  1871,  and  a  bill  was  filed  to  en- 
join the  mill  owner  from  allowing  the  ebb  and  flow  of  the  water 
below  the  mill,  caused  by  the  usual  stopping  and  opening  of  the 
gate,  on  the  ground  that  it  produced  sickness  in  the  neighborhood, 
with  special  damage  to  the  plaintiff,  and  it  appeared  by  affidavits 
that  there  was  much  conflict  of  testimony,  as  to  the  fact  of  the 
damage  and  as  to  the  ebb  and  flow  being  the  cause  of  the  sickness, 
it  was  held  no  abuse  of  the  discretion  of  the  court  if  he  refuse  the 
injunction  until  the  facts  were  passed  upon  by  a  jury.23  Again,  it 
is  decided  that  after  the  fact  that  the  acts  complained  of  are  a 
nuisance  is  established,  by  a  verdict  of  the  jury,  equity  will  inter- 

20.  Bell    v.    Blount,    2    N.    C.     (4  23.  Nelms  v.  Clark  &  Morgan,  44 
Hawks)    384.  Ga.  617. 

21.  Attorney-Genl.    v.    Cleaver,    18  24.  Crawford    v.    Atglen    Axle    & 
Ves.  211.  Iron   Mfg.    Co.    (Pa.),    1    Chest.    Co. 

22.  Fisk   v.    Wilber,   7   Barb.    (N.  Rep.  412. 
Y.)    395. 

604 


Remedies,  Parties,  Defenses  and  Damages. 


419 


fere  to  prevent  their  continuance,  for  the  first  recourse  must  be 
had  to  an  action  at  law  to  determine  the  existence  of  the  nuisance 
before  equity  will  interfere  to  restrain  it.24 

§  419.  Prospective  or  threatened  nuisance — Apprehended  in- 
jury.25— Equity  will  not  afford  relief  against  a  merely  prospective 
or  threatened  nuisance,  where  the  injury  is  apprehended,  doubt- 
ful, possible  or  contingent.  A  mere  prospect  of  future  annoyance 
or  damage  is  insufficient.  But,  even  though  the  nuisance  is  not 
one  per  se,  the  court  will  intervene  where  there  is  an  apparent, 
real,  imminent,  and  immediate  danger,  and  the  case  is  one  of  great 
and  pressing  necessity,  where  the  apprehension  is  well  grounded 
and  clearly  aappears ;  that  is,  where  a  strong  case  is  made  out,  and 
the  threatened  injury  is  material  and  one  that  is  certain  and  in- 
evitable, and  the  mischief  irreparable  and  the  legal  remdy  inade- 
quate.28 


25.  See  §  415,  herein. 

26.  State  of  Missouri  v.  State  of 
Illinois,  180  U.  S.  208,  45  L.  Ed.  497, 
21  S.  Ct.  331  (sewage)  ;  Ramsay  v. 
Riddle,  1  Cranch.  (U.  S.  C.  C.)  399, 
Fed.  Cas.  No.  11,544  (will  not)  ;  The- 
baut  v.  Canova,  11  Fla.  143  (will 
not)  ;  Bacon  v.  Walker,  77  Ga.  336 
( will  not — jail )  ;  Harrison  v.  Brooks, 
20  Ga.  537  (will  not— unless,  etc.); 
Flood  v.  Consumers'  Co.,  105  111.  App. 
559  (will  not — except,  etc.  Build- 
ing) ;  Thornton  v.  Roll,  118  111.  350, 
8  N.  E.  145  (will  not);  Dalton  v. 
Cleveland,  C.  C.  &  St.  L.  R.  Co.,  144 
Ind.  121,  43  N.  E.  130  (will  not— in- 
tended use  of  building)  ;  Hutchinson 
v.  Delano,  46  Kan.  345,  26  Pac.  740; 
Marrs  v.  Fiddler,  24  Ky.  Law  Rep. 
722,  69  S.  W.  953  (will  not— except, 
etc.  Building)  ;  Davis  v.  Adkins  18 
Ky.  L.  Rep.  73,  35  S.  W.  271;  Pfingst 
v.  Senn,  15  Ky.  L.  Rep.  325,  7  Nat. 
Corp.  Rep.  390,  21  L.  R.  A.  569,  21 
S.  W.  358  (will  not — prospective  use 


of  premises  as  beer  garden,  etc.); 
Gallagher  v.  Flury,  99  Md.  181,  57 
Atl.  672  (will  not — except,  etc.); 
Charles  River  Bridge  Co.  v.  Warren 
Bridge  Co.,  6  Pick.  (23  Mass.)  376 
(will— bridge)  ;  St.  Johns  v.  McFar- 
lan,  33  Mich.  72,  20  Am.  Rep.  671 
(will  not)  ;  Gwin  v.  Melmoth,  1 
Freem.  Ch.  (Miss.)  505  (will  not— 
structure)  ;  Van  de  Vere  v.  Kansas 
City,  107  Mo.  83,  35  Am.  &  Eng. 
Corp.  Cas.  101,  17  S.  W.  695  (will 
not — fire  engine  house)  ;  Holke  v. 
Herman,  87  Mo.  App.  125  (will  un- 
der certain  conditions ) ;  Newark 
Aqueduct  Board  v.  Passaic,  46  N.  J. 
Eq.  552,  20  Atl.  54,  22  Atl.  55,  13  N. 
J.  L.  J.  238  (will  not — sewage); 
Newark  Aqueduct  Board  v.  Pas- 
saic, 45  N.  J.  Eq.  393,  18  Atl. 
106;  46  N.  J.  Eq.  552  (when 
granted)  ;  Duncan  v.  Hayes,  22 
N.  J.  Eq.  25  (will  not — except, 
etc.)  ;  Attorney-General  v.  Steward, 
21  N.  J.  Eq.  340  (will— building)  ; 
Attorney-General  v.    Steward,   20    N. 


605 


§  420       Remedies,  Parties,  Defenses  and  Damages. 

§  420.  Same  subject — Other  statements  or  forms  of  rule. — 
The  general  rule  is  that  the  court  will  not  interfere  in  a  case  of 
merely  prospective  injury.  The  nuisance  must  be  actual  and  ex- 
isting, and  not  future,  however  strongly  the  apprehension  of  in- 
jury may  be  supported  by  scientific  evidence.27  So  plaintiff  must 
show  that  the  acts  which  lie  seeks  to  restrain  will  be  a  nuisance, 
that  the  injury  to  him  will  be  real  and  the  damages  irreparable, 
and  that  his  apprehension  was  based  on  imminent  danger.28  And 
exciting,  constant  and  reasonable  apprehension  of  danger,  although 
no  actual  injury  hag  been  occasioned,  has  been  held  to  be  a  nuis- 
ance, as  in  the  case  of  keeping  gun  powder.29  It  is  also  declared 
that  there  are  cases,  where  acts  done  by  another  on  his  own  land 
may  constitute  a  nuisance  to  a  dwelling  house  when  they  excite 
the  constant  and  reasonable  apprehension  of  injury.  But  in  all 
these  cases,  it  is  held  that  the  danger  must  be  actual  and  imminent, 
and    not    imaginary,    conjectural    or    remote.30      Again,    when    a 


J.  Eq.  415  (will  not — building)  ; 
Cleveland  v.  Citizens  Gaslight  Co.,  20 
N.  J.  Eq.  201  (will  under  certain  cir- 
cumstances )  ;  Wolcott  v.  Melick,  1 1 
N.  J.  Eq.  204,  66  Am.  Dec.  790  (will 
in  certain  cases)  ;  Butler  v.   Rogers, 

9  N.  J.  Eq.  1S7  or  487  (will  not); 
Thompson  v.  City  of  Patterson,  9  N. 
J.  Eq.  624  (use  of  property  or  struc- 
tures) ;  State  Courter  v.  Newark 
Board  of  Health,  54  N.  J.  L.  325,  23 
Atl.  949,  37  Am.  &  Eng.  Corp.  Cas. 
508,  14  Crim.  L.  Mag.  508  (will 
not)  ;  Mohawk  Bridge  Co.  v.  Utica  & 
S.  R.  Co.,  6  Paige  (N.  Y.),  554  (will 
be   granted)  ;      Depierris  v.   Mattern, 

10  N.  Y.  Supp.  636  (will  not— in- 
tended use  of  premises)  ;  Vickers  v. 
City  of  Durham,  132  N.  C.  880,  44 
S.  E.  685  (will  not— sewage)  ;  Dor- 
sey  v.  Allen,  85  N.  C.  358,  39  Am. 
Rep.  704  (will  not)  ;  Esser  v.  Wat- 
tier,  25  Or.  7,  34  Pac.  756  (will  not 
— dam)  ;  Rhodes  v.  Dunbar,  57  Pa. 
274,  98  Am.  Dec.  221  (will  not); 
Carpenter  v.  Cummings,  2  Phila.  74; 


Biddle  v.  Ash,  2  Ashm.  (Pa.)  211 
(will);  Honesdale  v.  Weaver,  2  Pa. 
Dist.  R.  344  (will — wooden  buildfug, 
see  §§  341-344,  herein);  Pierce  v. 
Gibson  County,  107  Tenn.  224,  233, 
64  S.  W.  33,  55  L.  R.  A.  477,  89  Am. 
St.  Rep.  946  (will — sewage)  ;  Cheat- 
ham v.  Shearon,  1  Swan  (Tenn.), 
213,  55  Am.  Dec.  734  (will)  ;  Pope  v. 
Bridgewater  Gas  Co.,  52  W.  Va.  252. 
43  S.  E.  87  (what  must  be  shown)  , 
Chambers  v.  Cramer,  49  W.  Va.  395, 
38  S.  E.  691  (insufficient  and  suffi- 
cient grounds  for)  ;  Attorney-General 
v.  Manchester  (1893),  2  Ch.  87  (will 
not — unless,   etc. ) . 

27.  Att'y-General  v.  Kingston-on- 
Thames  Corporation,  13  W.  R.  888, 
11  Jur.  N.  S.  596,  12  L.  T.  665,  34  L. 
J.  Ch.  481. 

28.  Vickers  v.  City  of  Durham, 
132  N.  C.  880,  44  S.  E.  685. 

29.  Barnes  v.  Hathorn,  54  Me.  124, 
127,  128,  per  Kent,  J. 

30.  Barnes  v.  Hathorn,  54  Me.  124, 


606 


Remedies,  Parties,  Defenses  and  Damages.       §  420 

municipal  corporation  is  proceeding  to  lay  sewers  and  discharge 
filthy  sewage  upon  the  land  of  the  property  owner,  which  may  prob- 
ably cause  injury  to  his  health  and  sickness  in  his  family,  and 
where  the  nuisance  is  continuing  and  likely  to  be  permanent,  and 
the  consequences  are  not  barely  possible,  but  to  a  reasonable  degree 
certain,  a  court  of  equity  may  interfere  to  arrest  such  nuisance 
before  it  is  completed.31 

133,   per    Dickson,    J.,    in   dissenting  31.  Butler  v.  The  Mayor  of  Thorn- 

opinion,  asville,  74  Ga.  570. 


m 


SUBDIVISION  II. 

PARTIES  ENTITLED  TO  REMEDY LIABILITY. 

SECTION  421.  Who  entitled  to   remedy — Against  whom  remedy  lies — Prelim- 
inary statement. 

422.  Private  person  suffering  special  injury  may  sue — Public  nuisance. 

423.  Same  subject — Other  statements  of  rule — Cause  and  effect. 

424.  Private  injury — Public  nuisance — Review  of  decisions — Instances. 

425.  Same  subject. 

426.  Same  subject. 

427.  Same  subject — Wesson  v.  Washburn. 

428.  Private  action — Public  nuisance — Others  similarly  affected. 

429.  Special  private  injury  must  be  shown — Pleading. 

430.  What   essentials  must   exist  to  sustain   private  action — Public 

nuisance. 

431.  Private    action — Public    nuisance — Sewage. 

432.  Private  action — Public  nuisance — Highways. 

433.  Private  action — Public  nuisance — Navigable  waters. 

434.  Private  action — Public  nuisance — Bridges. 

435.  Private  action — Public  nuisance — Wooden  walls  or  buildings. 

436.  Private  action — Public  nuisance — Other   instances. 

437.  State  of  public  entitled  to  remedy — Attorney-General  or  other 

prosecuting  officer. 

438.  Same  subject. 

439.  Municipal  and  quasi  municipal  corporations  entitled  to  remedy 

— English  local  authorities. 

440.  Boards  of  health  entitled  to  remedy — Sanitary  inspector. 

441.  Aqueduct  board  entitled  to  remedy. 

442.  Corporations  entitled  to  remedy. 

443.  Landowner  entitled  to  remedy — Landlord — Mortgagor — Riparian 

owners — Joinder. 

444.  Parties  entitled  to  remedy — Necessity  of  interest  in  land — Par- 

ties in  possession. 

445.  Lessee  or  tenant  entitled  to  remedy — Joinder. 

446.  Other  parties  generally  entitled  to  remedy — Joinder. 

447.  Person  creating  nuisance  liable — General  rule. 

448.  Liability  of  municipal  and  quasi  municipal  corporations. 

449.  Liability  of  officers  of  municipal,  etc.,  corporations. 

450.  Liability  of  private  corporations. 

451.  Same  subject— Opinions  of  text-writers. 

608 


Kemedies,  Parties,  Defenses  and  Damages.        §  422 

SECTION  452.  Liability  of  officers  of  corporation. 

453.  Liability  of  owner  generally — Instances. 

454.  Liability  of  erector  of  nuisance  and  subsequent  holders  by  pur- 

chase or  descent — Continuance  of  nuisance. 

455.  Same    subject — Notice  or   request   to   abate — Creator   or   main- 

tainer  of  nuisance. 

456.  Notice  or  request  to  abate  continued — Grantee,  etc.,  of  erector  of 

nuisance. 

457.  Notice  or  request  to  abate  continued. 

458.  Same  subject. 

459.  Liability  for  continuing  nuisance — Statute  of  limitations — Rul- 

ings and  instances. 

460.  Same  subject. 

461.  Liability — Landlord  and  tenant — Distinction  to  be  observed. 

462.  When   owner   or    landlord    liable  to    third    persons — Rules    and 

instances. 

463.  Same  subject — Defective,  dangerous,  etc.,  condition  of  premises. 

464.  Lessor  of  structure  or  building  for  public  entertainment  liable. 

465.  Liability  of  lessee  who  sublets. 

466.  When  owner  or  landlord  not  liable  to  third  persons — Rules  and 

instances. 

467.  Liability  of  landlord  to  tenant. 

468.  Liability  of  tenant. 

469.  Liability  where  term  of  lessee  is  nine  hundred  and  ninety-nine 

years. 

470.  Liability — Landlord  and  tenant — Obligation  to  repair. 

471.  Same  subject — Instances. 

472.  Whether  owner,  occupant,  contractor  or  sub-contractor  liable. 

473.  Immoral,  illegal  and  unlawful  use  of  property — Who  liable. 

474.  Liability  of  persons  jointly  and  severally  contributing. 

475.  Other  persons  who  are  and  are  not  liable. 

§  421.  Who  entitled  to  remedy — Against  whom  remedy  lies — 
Preliminary  statement. — The  general  principles  which  govern  in 
determining  who  is  entitled  to  a  remedy,  and  against  whom  a 
remedy  lies  or  who  is  liable,  are  so  fully  stated  throughout  this 
work,  especially  in  the  earlier  chapters,  that  they  will  not  be  re- 
peated here,  and  only  certain  rules,  and  decisions  or  instances,  in 
particular  cases  will  be  considered  under  this  chapter. 

§  422.  Private  person  suffering  special  injury  may  sue— Pub- 
lic nuisance. — Where  a  private  party  has  been  specially  damaged 
by  a  public  nuisance,  his  damage  differing  in  kind  and  degree  from 

609 


§  422       Remedies,  Parties,  Defenses  and  Damages. 

that  of  the  general  public,  lie  may  maintain  an  action  to  abate  such 
nuisance.1 


1.  Dawson  v.  McMillan,  34  Wash. 
269,  75  Pac.  807  ("a  private 
person  may  maintain  a  civil  action 
for  a  public  nuisance  if  it  is  specially 
injurious  to  himself  but  not  other- 
wise"). Ballinger's  Annot.  Codes  & 
Stat.,  Wash.   1897,   §   3093. 

Private  person  may  bring  ac- 
tion.     Northern  P.  R.  Co.  v.  Whalen, 
149  U.  S.  157,  13  Sup.  Ct.  822,  37  L. 
Ed.  686;   Mississippi  &  M.  Pv.  Co.  v. 
Ward,  2  Black    (67  U.   S.),   485,   17 
L.   Ed.   311;    Pennsylvania  v.  Wheel- 
ing Bridge  Co.,  13  How.   (U.  S.)   518; 
Irwin  v.  Dixon,  9  How.    (U.  S.)    10; 
Georgetown  v.  Alexandria  Canal  Co., 
12    Pet.     (37    U.    S.)     91,    9    L.    Ed. 
1012;     Indianapolis     Water     Co.    v. 
American    Strawboard    Co.,    57    Fed. 
1000;    Spokane  Mill   Co.   v.   Post,   50 
Fed.  429;   Woodruf  v.  North   Bloom- 
field   Gravel   Co.,   18    Fed.   753;    Rob- 
erts v.  Matthews,  137  Ala.  523,  34  So. 
624;  Richards  v.  Daugherty,  133  Ala. 
569,  31   So.  934;   Crommelin  v.   Coxe, 
30  Ala.  318,  68  Am.  Dec.  120;  Rosser 
v.  Randolph,   7  Port.    (Ala.)    238,  31 
Am.    Dec.    712;     Little   Rock  Missis- 
sippi River  &  Texas  R.  Co.  v.  Brooks, 
39  Ark.  403,  43  Am.  Rep.  277;  Lind 
v.  San  Luis  Obispo,  109  Cal.  340,  42 
Pac.    437,    under    Cal.    Civ.    Code,    § 
3493;    Hargro    v.    Hodgdon,    89    Cal. 
623,  26  Pac.   1106;    San  Jose  Ranch 
Co.  v.  Brooks,  74   Cal.  463,   16  Pac. 
250;  Kiel  v.  Jackson,  13  Colo.  378,  22 
Pac.  504,  6  L.  R.  A.  254,  40  Am.  & 
Eng.    R.    Cas.    297;    Nolan    v.    New 
Britain,   69   Conn.  668,   38   Atl.   703; 
Frink  v.  Lawrence,  20  Conn.   117,  50 
Am.  Dec.   274;   Burrows  v.  Pixley,  1 
Root    (Conn.),  362,   1   Am.   Dec.  56; 


Savannah  F.  &  W.  R.  Co.  v.  Gill,  118 
Ga.  737,  45  S.  E.   737;    Savannah  F. 
&  W.  R.  Co.  v.  Parish,   117  Ga.  893, 
45  S.  E.  280,   14  Am.  Neg.  Rep.  540, 
542  Civ.  Code  Ga.  1895,  §§  3858,  3859, 
Devaughn  v.  Minor,  77  Ga.  809,  1  S. 
E.  433;   Ison  v.  Manley,  76  Ga.  804; 
Hamilton   v.    City    of    Columbus,    52 
Ga.  435;    South  Carolina  Railroad  v. 
Moore  &  Philpot,  28  Ga.  418;   Small 
v.  Harrington    (Idaho),  79  Pac.  461, 
Rev.    Stat.    1887,   §   3633;   Redway  v. 
Moore,  2   Idaho,    1036,   29  Pac.    104; 
Jacksonville  v.  Doan,   145   111.  23,  33 
N.    E.    878,    aff.    48    111.    App.    247; 
Wylie  v.  Elwood,  134  111.  281,  23  Am. 
St.  Rep.   673,  9   L.  R.  A.   726,  25  N. 
E.  570,  46  Am.  &  Eng.  R.   Cas.   513, 
aff.    34   111.   App.    244;    Crane   Co.   v. 
Stammers,  83   111.   App.  329;    Martin 
v.    Marks,    154    Ind.    549,    57    N.    E. 
249;  Kaufman  v.   Stein,   138  Ind.  49, 
37   N.  E.  333,  46  Am.  &  Eng.  Corp. 
Cas.  677,  46  Am.  St.  Rep.  368;  Fossin 
v.  Landry,  123  Ind.  136,  24  N.  E.  96; 
Dwenger  v.  Chic.  &  G.  T.  Ry.,  98  Ind. 
153;    Scheible  v.   Law,   65    Ind.   332; 
Piatt  v.  Chicago  B.  &  Q.  R.  Co.,  74 
Iowa,    127,     37    N.   W.    107;     School 
Dist.   v.   Neil,   36  Kan.   617,   59   Am. 
Rep.    575,    14    Pac.    253;    Venard    v. 
Cross,  8     Kan.  248;   Bannon  v.   Roh- 
meiser,  17  Ky.  L.  Rep.  1378,  34  S.  W. 
1084,    rehearing    denied,    17    Ky.    L. 
Rep.   1380,  35  S.  W.  280;  Bruning  v. 
New  Orleans   Canal  &   Banking  Co., 
12  La.  Ann.  541;  Holmes  v.  Corthell, 
80   Me.    31,  5   N.   Eng.   Rep.   793,    12 
Atl.    730;    Washburn    v.    Gilman,   64 
Me.    163,   18  Am.   R.  246;    Brown  v. 
Watson,  47   Me.    161,    74    Am.   Dec. 
482;  City  of  Baltimore  v.  Marriott, 


610 


Remedies,  Parties,  Defeases  axd  Damages. 


423 


§  423.  Same  subject — Other  statements  of  rule — Cause  and 
effect. — In  Georgia  the  general  rule  of  law  is  that  a  nuisance  may 
at  the  same  time  be  both  public  and  private,  and  a  recovery  may 


9  Md.  160;  Stetson  v.  Faxon,  19  Pick. 
(Mass.)  147,  31  Am.  Dec.  123;  Page 
v.  Mille  Lacs  Lumber  Co.,  53  Minn. 
492;  Pascagoula  Boom  Co.  v.  Dick- 
son, 77  Miss.  587,  28  So.  724;  Cum- 
mings  v.  St.  Louis,  90  Mo.  259,  7 
West  276;  Schoen  v.  Kansas  City,  65 
Mo.  App.  134;  Easton  &  A.  R.  Co.  v. 
Central  P.  Co.,  52  N.  J.  L.  267,  31 
Am.  &  Eng.  Corp  Cas.  262;  Melirhof 
Bros.  Brick  Mfg.  Co.  v.  Delaware,  &  L. 
W.  R.  Co.,  51  N.  J.  L.  26,  16  Atl.  12; 
Runyon  v.  Bordine,  14  N.  J.  L.  472; 
Wakeman  v.  Wilbur,  147  N.  Y.  657, 
42  N.  E.  341,  71  N.  Y.  St.  R.  266, 
revg.  21  N.  Y.  St.  R.  556,  4  N.  Y. 
Supp.  938;  Leonard  v.  Spencer,  108 
N.  Y.  338,  15  N.  E.  397,  11  Cent.  Rep. 
98,  13  N.  Y.  St.  R.  653,  28  Wkly  D. 
368,  affg.  34  Hun.  341;  Milbau  v. 
Sharp,  27  N.  Y.  611,  26  How.  599n., 
84  Am.  Dec.  314,  affd.  17  Abb.  220, 
28  Barb.  228,  which  affd.  17  Barb. 
435,  9  How.  102 ;  Dimon  v.  Shewan, 
34  Misc.  R.  72,  69  N.  Y.  Supp.  402; 
Porth  v.  Manhattan  R.  Co.,  33  N.  Y. 
S.  R.  709,  11  N.  Y.  Supp.  633,  26 
Jones  &  S.  (58  Super.  Ct.)  366,  affd. 
134  N.  Y.  615,  32  N.  E.  649,  47  N.  Y. 
St.  R.  929 ;  Irvine  v.  Atlantic  Ave.  R. 
Co.,  10  App.  Div.  560,  42  N.  Y.  Supp. 
1103;  Astor  v.  New  York  &  A.  Ry. 
Co.,  3  N.  Y.  St.  R.  188;  De  Laney  v. 
Blizzard,  7  Hun,  7 ;  Smith  v.  Lock- 
wood,  13  Barb.  (N.  Y.)  209;  Lansing 
v.  Smith,  4  Wend.  (N.  Y.)  9,  21  Am. 
Dec.  89;  Reyburn  v.  Sawyer,  135  N. 
C.  328,  65  L.  R.  A.  930,  47  S.  E. 
761;  Farmers'  Co-Op.  Mfg.  Co.  v. 
Albemarle  &  R.  R.  Co.,  117  N.  C. 
679,  29  L.  R.  A.  700,  23  S.  E.  43; 


Gordon  v.  Baxter,  74  N.  C.  470;  City 
of  Roseburg  v.  Abraham,  8  Oreg.  509; 
Parrish  v.  Stephens,  1  Oreg.  73;  City 
of  Pittsburgh  v.  Scott,  1  Pa.  309; 
Horstman  v.  Young  (Pa.),  13  Phila. 
19;  Smith  v.  Cummings,  2  Pars.  Eq. 
Cas.  (Pa.),  92;  Clark  v.  Peckham,  10 
R.  I.  35,  14  Am.  R.  654;  Aldrich  v. 
Howard,  7  R.  I.  199;  Richi  v.  Chat- 
tanooga Brewing  Co.,  105  Tenn.  651, 
58  S.  W.  646;  Weakley  v.  Page 
(Tenn.),  53  S.  W.  551;  Abbott  v. 
Mills,  3  Vt.  521,  23  Am.  Dec.  222; 
Ingersoll  v.  Rousseau,  35  Wash.  92, 
76  Pac.  513;  Smith  v.  Mitchell,  21 
Wash.  536,  58  P.  667;  Carl  v.  West 
Aberdeen  Land  &  I.  Co.,  13  Wash. 
616,  43  Pac.  890;  Ryan  v.  Schwartz, 
94  Wis.  403,  69  N.  W.  178;  Clark  v. 
Chicago  &  N.  W.  R.  Co.,  70  Wis. 
593,  5  Am.  St.  R.  187,  36  N.  W. 
326;  Pettibone  v.  Hamilton,  40  Wis. 
402. 

Suit  by  private  person  is  not 
for  himself  alone,  but  for  the  in- 
terests of  all  similarly  injured.  The 
court  will  consider  not  only  the 
plaintiff's  interest  but  also  those  of 
the  public.  Woodruff  v.  North  Bloom- 
field  Gravel  Min.  Co.,  18  Fed.  753. 

Title  unnecessary  to  enable 
private  person  to  sue  for  injury 
occasioned  by  public  nuisance  where 
he  has  possession  and  is  otherwise 
within  the  rule  as  to  special  damage. 
Crommelin  v.  Coxe,  30  Ala.  318,  68 
Am.  Dec.  120. 

Vested  right  obstructed  is  suf- 
ficient special  injury  upon  which 
to  base  right  of  action.  Ryan  v. 
Schwartz,  94  Wis.  403,  69  N.  W.  178. 


611 


§  424        Remedies,  Parties,  Defenses  and  Damages. 

be  had  by  one  who  has  suffered  special  damage  by  reason  of  sick- 
ness of  himself  or  family,  and  he  does  not  lose  this  right  because 
others  in  the  vicinity  have  similar  rights  of  action.  The  rule 
also  applies  where  the  cause  and  effect  are  close  and  immediate, 
as  when  the  inhabitants  of  a  particular  house  are  rendered  sick 
by  a  pool  of  stagnant  water  in  a  city  and  the  depreciated  rental 
value  of  the  residence  is  immediately  and  proximately  due  to  a 
special  and  particular  cause  close  at  hand  and  that  cause  is  pro- 
duced by  a  violation  of  law  or  the  maintenance  of  something  con- 
trary to  law  and  which  in  its  nature  w^orks  hurt  to  those  close  by. 
And  under  the  code  in  that  State  while  a  public  nuisance  is  one 
which  damages  all  persons  which  come  within  the  sphere  of  its 
operations,  though  it  may  vary  in  its  effect  upon  individuals,  jet, 
if  a  public  nuisance  causes  special  damage  to  an  individual  in 
which  the  public  does  not  participate,  such  special  damage  gives  a 
right  of  action.2  And  under  an  early  case  in  the  same  state  it  is 
declared  that  the  general  rule  of  law  is  that  a  private  action  will 
not  lie  for  a  public  nuisance.  It  is  the  subject  of  indictment,  not 
of  action.  The  reason  of  the  rule  is  that  it  creates  a  multiplicity 
of  actions,  one  being  as  well  entitled  to  bring  an  action  as  an- 
other. To  this  general  rule  there  is  an  exception  in  the  case  of  one 
who  suffers  a  particular  damage  by  the  nuisance.3  So  one  who  has 
sustained  special  damage  within  the  rule  may  have  his  action 
where  the  injury  is  either  direct  or  consequential.4 

§  424.  Private  injury — Public  nuisance — Review  of  decisions 
— Instances. — In  Alabama  chancery  will  sustain  a  bill  filed  by  an 
individual  to  enjoin  a  nuisance  wliich  although  it  affects  him,  is 
also  public  in  its  character ;  but  as  one  of  the  transcendent  powers 
of  the  court  it  will  be  exercised  sparingly.5  It  is  also  declared  in 
that  State  that  it  is  well  settled  that  an  individual  who  has  sus- 
tained any  particular  special  injury  over  and  above  that  sustained 

2.  Savannah  F.  &  W.  R.  Co.  v.  4.  Kuhn  v.  Illinois  Cent.  R.  Co., 
Parish,  117  Ga.  893,  45  S.  E.  280,  111  111.  App.  323;  Lansing  v.  Smith, 
14  Am.  Neg.  Rep.  540,  542,  Civ.  Code  4  Wend.  (N.  Y.)  9,  21  Am.  Dec.  89; 
Ga.   1895,   §§   3858,  3859.  Pittsburgh  v.  Scott,  1  Pa.  309. 

3.  South  Carolina  R.  R.  v.  Moore  5.  Rosser  v.  Randolph,  7  Port 
&  Philpot,  28  Ga.  418.  (Ala.),  238,  31  Am.  Dec.  712. 

612 


Kemedies,  Parties,  Defenses  and  Damages.        §  424 

by  the  public  generally,  as  the  direct  result  of  a  public  nuisance, 
may  maintain  a  bill  to  enjoin  it  and  this  rule  applies  to  the  right 
of  an  owner  of  abutting  or  adjacent  property  to  prevent,  or  redress 
an  obstruction  or  perversion  of  a  street  to  the  private  uses  of  the 
defendants',  inconsistent  with  the  rights  of  the  public,  where 
special  injury  would  result  to  plaintiff  and  an  erection  by  defend- 
ant of  stone  columns  in  front  of  its  building  projecting  so  far  into 
the  street  as  to  deprive  plaintiff  of  his  easement  of  view  in  the 
public  street  constitutes  a  special  injury,  even  though  no  actual 
damage  is  proved.  Such  a  case  differs  from  one  of  an  action  be- 
tween adjacent  property  owners  for  an  obstruction  of  view  over 
private  property  for  an  easement  of  view  from  every  part  of  a 
public  street  is  a  valuable  right  of  which  the  owner  of  a  building 
on  a  street  should  not  be  deprived  by  an  encroachment  on  the 
highway  by  an  adjacent  proprietor.6  In  another  case  in  the  same 
State  it  is  held  that  complainants  who  are  the  children,  grand- 
children and  only  heirs  at  law  of  one  who  owned  a  burying  lot  in 
lands  conveyed  and  dedicated  to  a  city,  and  in  which  a  number  of 
members  of  the  family  are  buried,  have  such  a  special  interest 
therein  as  will  enable  them  to  maintain  a  bill  to  remove  an  ob- 
struction of  an  alley  or  public  thoroughfare  adjacent  to  said  burial 
lot  where  such  thoroughfare  constitutes  a  public  nuisance.  A 
court  of  chancery  unquestionably  has*  jurisdiction  to  enjoin  a 
public  nuisance  consisting  of  the  permanent  obstruction  of  a  pub- 
lic street.7  In  a  California  case  the  court  says :  "  There  is  no 
doubt  but  there  are  many  nuisances  which  may  occasion  an  injury 
to  an  individual  for  which  an  action  will  not  lie  by  him  in  his 
private  capacity,  unless  he  can  show  special  damage  to  his  person 
or  property  differing  in  kind  and  degree  from  that  which  is  sus- 
tained by  other  persons  who  are  subjected  to  similar  injury. 
Among  such  may  be  mentioned  the  invasion  of  a  common  and 
public  right,  which  every  one  may  enjoy  such  as  the  use  of  a  high- 
way, or  canal,  or  public  landing  place.  But  this  class  of  nuisances 
is  confined  in  most  cases  to  where  there  has  been  an  invasion  of  a 
right  which  is  common  to  every  person  in  the  community,  and 

6.  First  National  Bk.  of  Montgom-  7.  Weiss    v.    Taylor     (Ala.    1905), 

ery  v.  Tyson  (Ala.  1905),  39  So.  560.       39  So.  519. 

613 


§  424       Kemedies,  Pakties,  Defenses  and  Damages. 

not  to  where  the  wrong  has  been  done  to  private  property,  or  the 
private  rights  of  individuals,  although  many  individuals  may  have 
been  injured  in  the  same  manner  and  by  the  same  means.  In  the 
one  case,  the  invasion  is  of  a  public  right  which  injures  many  in- 
dividuals in  the  same  manner,  although  it  may  be  in  different 
degrees.  In  the  other  case  no  public  or  common  right  is  invaded, 
but  by  the  one  nuisance  the  private  rights  and  property  of  many 
persons  are  injured.  Because  the  nuisance  affects  a  great  number 
of  persons  in  the  same  way  it  cannot  conclusively  be  said  that  it  is 
a  public  nuisance  and  nothing  more.  The  fact  that  a  nuisance  is 
public  does  not  deprive  the  individual  of  his  action  in  cases  where, 
as  to  him,  it  is  private  and  obstructs  the  free  use  and  enjoyment 
of  his  private  property."  8  In  a  case  in  the  Court  of  Appeals  in 
that  State  it  is  decided  that  the  owner  of  property  abutting  upon 
a  street  or  alley  owns  the  incidental  rights  to  ingress  and  egress 
as  completely  as  he  does  the  property  to  which  the  rights  are  inci- 
dent and  an  infringement  of  these  rights  is  a  private  wrong.  And 
where  the  injury  complained  of  being  the  obstruction  of  a  public 
alley  and  therefore  a  public  wrong,  the  plaintiff  may  have  redress 
where  it  appears  by  proper  averments  that  he  suffers  some  injury 
in  its  nature  special  and  peculiar  to  him  and  different  in  kind 
from  that  to  which  the  public  is  subjected,  and  within  this  test 
is  an  allegation  of  an  injury  to  a  private  right  incidental  to  private 
property  of  the  nature  first  specified ;  and  the  rule  is  none  the  less 
applicable  because  the  wrong  is  committed  in  a  manner  which 
would  render  the  party  liable  to  an  indictment  for  a  common 
nuisance.9  In  Illinois  it  is  declared  that  it  is  a  well-established 
rule  that  where  a  person  sustains,  by  reason  of  a  public  nuisance, 
a  special  damage  different  from  that  which  is  common  to  all,  he  is 
entitled  to  an  action.  The  doctrine  that  special  damage  must  be 
shown  in  order  to  justify  a  private  action  for  injury  growing  out 
of  a.  public  nuisance,  had  its  origin  in  the  consideration  of  nuis- 
ances growing  out  of  obstructions  to  highways  and  navigable 
streams.  The  strictness  of  the  original  rule  has  been  greatly 
modified  since  the  days  of  Lord  Coke,     The  doctrine  now  is  that  a 

8.  Fisher    v.    Zumwalt,     128     Cal.  9.  Harniss     v.     Bulpitt     (Cal.    Ct. 

493,  496,  61  Pac.  82,  per  Cooper,  C.      App.   1905),  81  Pac.   1022. 

614 


Kemedies,  Parties,  Defenses  and  Damages.        §  425 

nuisance  may  be  at  the  same  time  both  public  and  private.  An 
individual,  who  receives  actual  damage  from  a  nuisance,  may 
maintain  a  private  action  for  his  own  injury,  although  there  may 
be  many  others  in  the  same  situation.10 

§  425.  Same  subject. — In  Kentucky  although  the  fact  that  sev- 
eral persons  living  in  the  vicinity  of  the  alleged  nuisance  have 
united  in  a  petition  for  the  same  relief  may  evidence  the  existence 
of  a  nuisance  affecting  all  alike  it  does  not  follow  that  each  may 
not  have  sustained  a  special  injury.  The  fact  that  the  injury  is 
identical  when  applied  to  each  does  not  make  it  such  a  public  nuis- 
ance as  would  deprive  the  individual  citizen  of  his  right  to  re- 
dress.11 In  Maryland,  one  who  seeks  to  enjoin  at  a  private  suit  the 
construction  of  a  railroad  siding  or  switch  for  the  use  of  steam  cars 
must,  even  though  it  may  become  a  public  nuisance  by  reason  of 
its  nearness  to  a  public  road,  by  proper  averments  show  that  he 
will  suffer  some  peculiar  and  special  injury  different  in  kind  from 
that  which  will  be  occasioned  to  the  general  public,  and  an  allega- 
tion that  complainant  has  no  exit  to  drive  from  his  premises  other 
than  over  such  county  road,  the  use  of  which  will  be  interfered 
with  and  endangered  by  the  construction  of  the  railroad  in  ques- 
tion, is  insufficient  where  there  is  no  actual  obstruction  of  such 
county  road  and  it  is  not  pretended  that  it  cannot  be  used  at  all, 
but  only  that  the  safety  and  comfort  of  using  it  will  be  impaired 
and  the  complainant  in  using  it  would  only  encounter  the  same 
inconvenience  in  kind  that  would  be  suffered  by  others  of  the 
general  public  who  might  have  occasion  to  use  it.  A  railroad 
switch  or  siding  is  not  a  nuisance  per  se,  but  can  only  become  so 
by  reason  of  circumstances  of  location,  construction  or  use,  and 
in  such  case  equity  will  not  interfere  unless  under  the  allegations 
and  proof  there  are  substantial  grounds  for  interference.12    Under 

10.  Wylie  v.  Elwood,  134  111.  281,  Side    tracks     at     railroad    sta- 

287,  25   N.   E.  570,   23  Am.   St.   Rep.  tions  are  an  essential  part  of  the 

673,  9  L.  R.  A.  726,  per  Magruder,  J.  road  and  are  as  much  authorized  and 

11,.  Seifried  v.  Hays,  81   Ky.   377,  required   as   the  main   line  and  sta- 

380,  50  Am.  Rep.   167.  tions.      Therefore,    the   mere   location 

1.2.  Davis  v.  Baltimore  &  Ohio  R.  of   such  tracks  and   stations  near   to 

Co.   (Md.  1905),  62  Atl.  572.  the    property    of  others    cannot   give 

615 


§  425       Kemedies,  Parties,  Defenses  and  Damages. 

a  Missouri  appeals  case  if  a  nuisance  is  no  more  than  a  public 
one  under  a  statute  declaring  like  things  to  be  public  nuis- 
ances, the  remedy  might  be  by  indictment  alone,  but  where  it  is  a 
nuisance  in  fact  which  causes  peculiar  annoyance  and  injury  to  a 
private  person  and  he  is  specially  distressed  and  damaged  thereby 
he  may  have  his  private  remedy.13  In  a  Nebraska  cas©  it  is  held 
that  the  process  of  injunction  cannot  be  availed  of  by  a  private 
citizen  to  abate  a  purely  public  nuisance  from  which  he  suffers 
no  special  or  peculiar  injury  of  a  continuing  nature,  for  which  an 
action  at  law  will  afford  him  no  adequate  remedy  or  redress,  and 
that  for  a  single  injury  capable  of  estimation  in  damages,  although 
inflicted  in  the  perpetration  of  a  public  wrong,  compensation  must 
be  sought  in  a  court  of  law.  It  is  not  enough  to  confer  jurisdiction 
upon  equity  that  the  plaintiff  has  suffered  damages  special  and 
peculiar  to  himself,  and  in  which  the  public  do  not  share,  but  such 
damages  must  be  of  such  a  character  as  to  be  incapable  of  being 
compensated  and  measured  in  damages.  The  law  is  well  estab- 
lished that,  if  the  damages  suffered  by  an  individual  are  of  the 
same  nature  as  those  inflicted  upon  the  public  at  large,  they  are 
not  rendered  special  and  peculiar,  within  the  meaning  of  the  rule, 
by  the  fact  that  they  exceed  the  latter  in  degree.  In  order  to  be 
included  within  the  rule  they  must  differ  from  the  latter  in  kind.14 

rise  to   a   liability  for    damages    for  13.  Scheurich    v.     Southwest  Mis- 

the  depreciation  in  value  of  property  souri   Light  Co.,   109  Mo.   App.   406, 

and  annoyance  and  discomfort  to  an  420,  84  S.  W.  1003,  per  Curiam, 

adjoining  owner  of  property  and  for  14.  George     v.      Peckham      (Neb. 

annoyance  and  discomfort  occasioned  1905),  103  N.  W.  664,  per  Ames,  C, 

by  the  carrying  on  of  the   railroad's  citing  to  the  first  proposition  Ray  & 

business  and  the  invasion  of  the  plain-  Colby     v.     Tenney,      (Neb.),     97     N. 

tiff's  home  of  noise,  dust,  odors,  etc.  W.  591;  Hill  v.  Pierson,  45  Neb.  507, 

If  so,  the  same  liability  would  arise  63  N.  W.  835;   Eidemiller  Ice  Co.  v. 

to  every  one  who  might  be  annoyed  Guthrie,   42    Neb.    254,   28   L.    R.   A. 

by  trains  passing  along  the  main  line,  581,    60   N.    W.    717;    Shed   v.    Haw- 

and  a  judgment  for  plaintiff  in  such  thorn,  3  Neb.   179;    2  Pomeroy's  Eq. 

case  will  be  reversed,  there  being  no  Jur.    §    1349,    citing    to    the    second 

negligence  in  carrying  on  defendant's  proposition  O'Brien  v.  Central  Iron  & 

business  and  it  appearing  that  plain-  Steel    Co.,    158    Ind.    218,    63    N.    E. 

tiff's  property  has  not  been  damaged.  302,  57  L.  R.  A.  508;  Jones  v.   City 

St.  Louis,  San  Francisco  &  Tex.  Ry.  of    Chanute,    63    Kan.    243,    65    Pac. 

Co.    v.  Shaw    (Tex.    Sup.   Ct.    1906),  243;    Gundlach    v.    Hamm,     (Mich.) 

92  S.  W.  30.  64  N.  W.  50. 

616 


Remedies,  Parties,  Defenses  and  Damages.        §  426 

In  North  Carolina,  one  suffering  peculiar  injury  from  a  nuisance 
may  sue  in  equity  and  is  not  restricted  to  an  action  for  damages.1;> 
Under  a  Pennsylvania  decision,  where  plaintiff  declared  as  for  a 
common  or  public  nuisance  with  an  averment  of  special  damage 
and  the  plea  was  the  general  issue,  an  instruction  that  under  the 
pleadings  in  the  case  plaintiff  must  show  that  defendants  in  open- 
ing the  works  and  business  complained  of,  were  guilty  of  maintain- 
ing a  common  nuisance,  which  was  inconvenient  and  troublesome 
to  the  whole  neighbouring  community  in  general,  and  that  from 
the  same  the  plaintiff  suffered  a  special  or  peculiar  injury,  was 
properly  refused.  The  court,  however,  said  that  for  this  reason 
alone  it  would  hesitate  to  reverse  the  case.16 

§  426.  Same  subject. — In  a  Washington  case  a  temporary  in- 
junction was  issued  to  restrain  the  operation  of  a  shooting  gallery 
and  a  "  tonophone  "  and  "  orchestrion  "  in  connection  with  de- 
fendant's business,  it  being  alleged  that  their  operation  constituted 
a  public  nuisance  specially  injurious  to  complainant.17  In  Texas 
a  statute  is  not  invalid  because  it  gives  to  a  citizen  of  a  State  a 
right  to  bring  suit  to  prevent  by  means  of  the  writ  of  injunction 
the  habitual  use,  actual,  contemplated  or  threatened,  of  any  prem- 
ises, place,  building  or  part  thereof,  for  the  purpose  of  gaming,  or 
exhibiting  games  prohibited  by  the  laws  of  the  State,  as  the  legis- 
lature has  power  to  designate  the  person  or  class  of  persons  who 
may  maintain  actions  to  restrain  and  abate  public  nuisances,  and 
when  that  is  done  the  action  is  for  all  purposes  an  action  instituted 
in  behalf  of  the  public,  the  same  as  though  brought  by  the  attorney- 
general  or  public  prosecutor,  and  the  fact  that  an  act  is  criminal  or 
quasi-criminal  does  not  debar  the  legislature  from  providing  that 
a  public  nuisance  may  be  enjoined  in  equity,  as  in  case  of  a  gam- 
ing house.18  In  Washington  an  owner  of  a  dwelling  who  is  injured 
by  nauseating  and  offensive  smells  from  a  slaughter  house  adja- 
cent to  the  residence  section  of  a  city,  which  smells  taint  the  at- 

15.  Reyburn  v.  Sawyer,  135  N.  C.  17.  Nisbet  v.  Great  Northern  Clay 

328,  65  L.  R.  A.  930,  47  S.  E.  761.  Co.   (Wash.  1905),  83  Pac.  14. 

1,6.  Price  v.  Grantz,   118  Pa.  402,  1,8.  Ex  parte  Allison    (Tex.  1906), 

11  Atl.  749,  4  Am.  St.  R.  601.  90  S.  W.  870.    See,  also,  id.  90  S.  W. 

492. 

617 


§  427       Kemedies,  Parties,  Defenses  and  Damages. 

mosphere  and  food  in  the  house  and  render  it  unfit  for  habitation 
and  depreciates  its  market  value,  sustains  such  a  special  injury  as 
to  be  entitled  to  equitable  relief  even  though  the  nuisance  is  a 
public  one.19  In  a  Wyoming  case  it  is  held  that  where  the  injury 
or  damage,  if  any,  resulting  to  plaintiff  from  an  unauthorized  or 
illegal  assertion  of  a  right  to  the  exclusive  possession  of  public, 
lands  on  the  part  of  defendant  would  be  suffered,  not  alone  by  the 
plaintiff,  but  by  all  alike  whose  live  stock  graze  in  that  locality, 
or  who  seek  to  enjoy  the  pasturage  afforded  by  the  grasses  upon 
such  public  lands;  the  injury  would  be  one  to  the  public,  and  if  a 
nuisance  at  all  a  public  nuisance,  and  would  therefore  be  within 
the  elementary  principle  that  private  persons  seeking  the  aid  of 
equity  to  restrain  a  public  nuisance  must  show  some  special  in- 
jury peculiar  to  themselves,  aside  from  and  independent  of  the 
general  injury  to  the  public.20 

§  427.  Same  subject  continued — Wesson  v.  Washburn. — In 

this  Massachusetts  case  the  court  says:  "A  nuisance  may  exist 
which  occasions  an  injury  to  an  individual,  for  which  an  action 
cannot  be  maintained  in  his  favor,  unless  he  can  show  some  special 
damage  in  his  person  or  property,  differing  in  kind  or  degree  from 
that  which  is  sustained  by  other  persons  who  are  subjected  to  in- 
convenience and  injury  from  the  same  cause.  The  difficulty  lies  in 
the  application  of  this  principle.  The  true  limit,  as  we  under- 
stand it,  within  which  its  operation  is  allowed,  is  to  be  found  in 
the  nature  of  the  nuisance  which  is  the  subject  of  complaint.  If 
the  right  invaded  or  impaired  is  a  common  and  public  one,  which 
every  subject  of  the  State  may  exercise  and  enjoy,  such  as  the  use 
of  a  highway,  or  canal,  or  public  landing  place,  or  a  common  water- 
ing place  on  a  stream  or  pond  of  water,  in  all  such  cases  a  mere 
deprivation  or  obstruction  of  the  use  which  excludes  or  hinders  all 
persons  alike  from  the  enjoyment  of  the  common  right,  and  which 
does  not  cause  any  special  or  peculiar  damage  to  any  one,  furnishes 
no  valid  cause  of  action  in  favor  of  an  individual,  although  he  may 
suffer  inconvenience  or  delay  greater  in  degree  than  others  from 

1.9.  Wilcox  v.  Henry,  35  Wash.  591.       Co.   v.   Mcllquam     (Wyo.     1905).    83 
77   Pac.   1055.  Pac.  364. 

20.  Anthony  Wilkinson  Live  Stock 

618 


Remedies,  Parties,  Defenses  and  Damages.        §  427 

the  alleged  obstruction  or  hindrance.     The  private  injury  in  this 
class  of  cases  is  said  to  be  merged  in  the  common  nuisance  and 
injury  to  all  citizens,  and  the  right  is  to  be  vindicated  and  the 
wrong  punished  by  a  public  prosecution,  and  not  by  a  multiplicity 
of  separate  actions  in  favor  of  private  individuals.     .     .     .     But 
it  will  be  found  that  in    .    .    .    cases    ...    in  which  the    .    .    . 
principle  has  been  laid  down,  it  has  been  applied  to  that  class  of 
nuisances  which  have  caused  a  hindrance  or  obstruction  in  the  ex- 
ercise of  a  right  which  is  common  to  every  person  in  the  com- 
munity, and  that  it  has  never  been  extended  to  cases  where  the 
alleged  wrong  is  done  to  private  property,  or  the  health  of  indi- 
viduals is  injured,  or  their  peace  and  comfort  in  their  dwellings 
is  impaired  by  the  carrying  on  of  offensive  trades  and  occupations 
which  create  noisome  smells  or  disturbing  noises,  or  cause  other 
annoyance  and  injuries  to  persons  and  property  in  the  vicinity, 
however  numerous  or  extensive  may  be  the  instances  of  discom- 
fort, inconvenience  and  injury  to  persons  and  property  thereby 
occasioned.     ...     If,  for  example,  a  public  way  is  obstructed, 
the  existence  of  the  obstruction  is  a  nuisance,  and  punishable  as 
such,  even  if  no  inconvenience  or  delay  to  public  travel  actually 
takes  place.    It  would  not  be  necessary  in  a  prosecution  for  such  a 
nuisance,  to  show  that  any  one  had  been  delayed  or  turned  aside. 
The  offence  would  be  complete,  although  during  the  continuance  of 
the  obstruction  no  one  had  occasion  to  pass  over  the  way.     The 
wrong  consists  in  doing  an  act  inconsistent  with  and  in  deroga- 
tion of  the  public  or  common  right.    It  is  in  cases  of  this  character 
that  the  law  does  not  permit  private  actions  to  be  maintained  on 
proof  merely  of  a  disturbance  in  the  enjoyment  of  the  common 
right,  unless  special  damage  is  also  distinct,  not  only  in  degree 
but  in  kind,  from  that  which  is  done  to  the  whole  public  by  the 
nuisance.     But  there  is  another  class  of  cases  in  which  the  essence 
of  the  wrong  consist's  in  the  invasion  of  private  rights,  and  in 
which  the  public  offence  is  committed,  not  merely  by  doing  an  act 
which  causes  injury,  annoyance  and  discomfort  to  one  of  several 
persons  who  may  come  within  the  sphere  of  its  operation  or  in- 
fluence, but  by  doing  it  in  such  place  and  in  such  manner  that  the 
aggregation  of  private  injuries  becomes  so  great  and  extensive  as 
to  constitute  a  public  annoyance  and  inconvenience,  and  a  wrong 

619 


§  428       Remedies,  Parties,  Defenses  and  Damages. 

against  the  community,  which  may  properly  be  the  subject  of  a 
public  prosecution.  But  it  has  never  been  held,  so  far  as  we 
know,  that  in  cases  of  this  character  the  injury  to  private  property, 
or  to  the  health  and  comfort  of  individuals,  becomes  merged  in 
the  public  wrong,  so  as  to  take  away  from  the  persons  injured  the 
right  which  they  would  otherwise  have  to  maintain  actions  to  re- 
cover damages  which  each  may  have  sustained  in  his  person  or 
estate  from  the  wrongful  act.  .  .  .  The  real  distinction  would 
seem  to  be  this :  that  when  the  wrongful  act  is  of  itself  a  disturb- 
ance or  obstruction  only  to  the  exercise  of  a  common  and  public 
right,  the  sole  remedy  is  by  public  prosecution,  unless  special  dam- 
age is  caused  to  individuals.  In  such  case  the  act  of  itself  does  no 
wrong  to  individuals  distinct  from  that  done  to  the  whole  com- 
munity. But  where  the  alleged  nuisance  would  constitute  a  pri- 
vate wrong  by  injuring  property  or  health,  or  creating  personal  in- 
convenience and  annoyance,  for  which  an  action  might  be  main- 
tained in  favor  of  a  person  injured,  it  is  none  the  less  actionable 
because  the  wrong  is  committed  in  a  manner  and  under  circum- 
stances which  would  render  the  guilty  party  liable  to  indictment 


§  428.  Private  action — Public  nuisance — Others  similarly  af- 
fected.— The  circumstance  that  many  other  property  owners  resid- 
ing in  the  vicinity  have  also  sustained  special  damages  will  not 
make  the  nuisance  any  less  a  private  nuisance.22  So,  under  a  New 
York  case,  no  matter  how  numerous  the  persons  may  be  who  have 
sustained  peculiar  damages  each  is  entitled  to  compensation  for 
his  injury.  The  fact  that  numbers  are  injured  does  not  make  the 
nuisance  common  and  so  prevent  redress  to  a  single  in- 
dividual    and     exclude     any     remedy     except    by     indictment. 

21.  Wesson  v.  Washburn  Iron  Co.,  Spokane  Mill  Co.  v.  Post,  50  Fed. 
13  Allen  (Mass.),  95,  100-103,  90  429,  432;  Wakeman  v.  Wilbur,  147 
Am.  Dec.  181,  per  Bigelow,  C.  J.  N.  Y.  657,  663,  per  Curiam;  Lansing 

22.  Kissel  v.  Lewis,  156  Ind.  233,  v.  Smith,  4  Wend.  (N.  Y.)  925,  21 
240,  59   N.  E.  278,   per  Dowling,   C.  Am.  Dec.  89,  per  Walworth,  C. 

J.     Savannah  F.  &  W.  R.  Co.  v.  Par-  Need  not  be  sole  sufferer.  Farm- 

ish,    117   Ga.  893,   45   S.   E.   280,   14  ers'  Co-Op.  Mfg.  Co.  v.  Albemarle  & 

Am.  Neg.  Rep.  540,   542;   Crane  Co.  R.  R.  Co.,  117  N.  C.  579,  23  S.  E.  43, 

v.  Stammers,  83  111.  App.  329.     See  29  L.  R.  A.  700. 

620 


Remedies,  Parties,  Defenses  and  Damages.        §  439 

The  distinction  is  that  where  the  injury  is  common  to  the  public 
and  special  to  none  redress  must  be  by  criminal  prosecution  in 
behalf  of  ull.23  Under  a  Washington  decision  a  person  may  bring 
an  action  on  behalf  of  himself  and  others  whose  rights  are  simi- 
larly affected,  where  it  is  brought  on  behalf  of  a  class  and  the  in- 
jury complained  of  is  not  common  to  the  general  public,  but 
peculiarly  affects  such  person,  and  those  of  his  class,  and  the 
alleged  acts  or  injury  constitute  a  damage  and  special  injury  to 
him  in  which  the  general  public  do  not  share.  The  fact  that  others 
would  suffer  in  the  same  way  constitutes  no  bar  to  the  mainten- 
ance of  the  action.24 

§  429.  Special  private  injury  must  be  shown — Pleading. — A 
special  injury  is  not  only  necessary  to  an  individual  to  enable  him 
to  recover  in  case  of  a  public  nuisance,25  but  such  injury  must  be 
shown  to  exist  as  a  prerequisite  to  such  recovery.253-  So,  under  a 
West  Virginia  decision  a  private  injury  actually  sustained  or 
justly  apprehended  must  be  shown  to  warrant  an  injunction.  The 
special  injury  must  be  serious,  reaching  the  substance  and  value  of 
plaintiff's  estate  and  be  permanent  in  character  where  an  individual 
seeks  to  restrain  a  public  nuisance  as  in  case  of  an  obstruction  to 

23.  Francis  v.  Schoellkopf,  53  N.  485;  Indianapolis  Water  Co.  v. 
Y-  152.  American   Strawboard   Co.,     57     Fed. 

Though  many  persons  affected  100,  affg.  53  Fed.  970;  Illinois,  St.  L. 

each  one  injured  may  have  a  private  R.  &  C.  Co.  v.  St.  Louis,  2  Dill.  (U.  S. 

action ;    such  a   case  being  a  private  C.  C. ) ,  70,  Fed  Cas.  No.  7007 ;  Packet 

nuisance  as  to  each  differs  from  one  Co.  v.  Sorrels,  50  Ark.  466,  8  S.  VV. 

where    a    right     is     interfered     with  683;  Payne  v.  McKinley,  54  Cal.  532; 

which    the    plaintiff   enjoys    in    com-  Jarvis  v.  Santa  Clara  Val.  R.  Co.,  52 

mon  with  the   public,   as   in  case  of  Cal.  438;  Bigelow  v.  Hartford  Bridge 

an  obstruction   of  a  public  highway.  Co.,  14  Conn.  565,  36  Am.  Dec.  502; 

Meek  v.   De   Latour    (Cal.    Ct.   App.  Christian   v.    Dunn,    8    Kulp.    320,    6 

1905),  83  Pac.   300,  per  Hall,  J.,   in  Del.  Co.  Rep.  476;    Chicago  Gen.  R.  Co. 

discussion  of  case.  v.  Chicago  B.  &  Q.   R.  Co.,    181    111. 

24.  Morris  v.  Graham,  16  Wash.  605,  54  N.  E.  1026;  Oglesby  Coal  Co. 
343,  345,  47  Pac.  752,  58  Am.  St.  v.  Pasco,  79  111.  164  (tenant  in  com- 
Rep.   33,  per  Gordon,   J.  mon)  ;    Innis   v.    Cedar   Rapids  I.   F. 

25.  Grigsby  v.  Clear  Lake  Water  &  N.  W.  R.  Co.,  76  Iowa,  165,  40  N. 
Co.,  40  Cal.  396,  406.  W.  701,  2  L.  R.  A.  282   (not  changed 

25a.  Mississippi  &  Mo.  R.  R.  by  Iowa  Code,  §  3331);  School  Dist. 
v.     Ward,     2     Black     (67     U.     S.), 

621 


§  429       Remedies,  Parties,  Defenses  and  Damages. 


a  public  highway.26  Again,  where  a  statutory  nuisance  is  a  public 
one,  a  private  individual  who  has  sustained  such  a  special  and 
peculiar  injury  as  to  entitle  him  to  relief  may  give  in  evidence  the 
facts  entitling  him  to  such  relief  where  the  necessary  allegations 
are  coupled  with  other  averments  stating  a  case  for  damages.  The 
essential  fact  to  be  averred  and  proved,  when  an  abatement  of  a 
nuisance  is  asked,  and  not  simply  compensation  in  damages  for  the 
mischief  it  entails,  is  that  the  annoyance  or  loss  is  continuous  or 
recurrent  and  irreparable  in  damages.27 


v.  Neil,  36  Kan.  617,  59  Am.  Rep. 
575,  14  Pac.  253  (school  district  as 
plaintiff )  ;  Werges  v.  St.  Louis  C.  & 
N.  O.  R.  Co.,  35  La.  Ann.  641;  Low 
v.  Knowlton,  26  Me.  128,  45  Am.  Dec. 
100;  Inhabitants  of  Winthrop  v.  New 
England  Chocolate  Co.,  180  Mass.  464, 
62  N.  E.  969;  McDonnell  v.  Cam- 
bridge R.  Co.,  151  Mass.  159,  23  N. 
E.  841  (when  not  entitled)  ;  Green  v. 
Lake,  54  Miss.  540,  28  Am.  Rep.  378; 
Baker  v.  McDaniel,  178  Mo.  447,  77 
S.  W.  531 ;  Shed  v.  Hawthorne,  3 
Neb.  179;  Hill  v.  New  York,  139  N. 
Y.  495,  30  N.  E.  1090,  54  N.  Y.  St. 
R.  797,  revg.  45  N.  Y.  St.  R.  693,  18 
N.  Y.  Supp.  399,  which  affd.  15  N.  Y. 
Supp.  393;  Milhau  v.  Sharp,  28  Barb. 
(N.  Y.)  228,  7  Abb.  Prac.  220;  United 
States  v.  Choctaw  O.  &  G.  R.  Co.,  3 
Okla.  404,  41  Pac.  729;  Sparhawk  v. 
Union  Pass.  Ry.  Co.,  54  Pa.  401; 
Thompson  v.  Charity  Hospital  of 
Pittsburg  (Pa.),  31  Pitts.  Leg.  J. 
N.  S.  15  (hospital);  Tiede  v. 
Schneidt,  105  Wis.  470,  81  N.  W. 
826     (slaughter    house). 

26.  Talbott  v.  King,  32  W.  Va.  6, 
9  S.  E.  48. 

27.  Scheurich  v.  Southwest  Light 
Co.,  109  Mo.  App.  406,  423,  424,  84  S. 
W.  1003. 

Sufficiency  of  pleading  to  show 
right  to  relief,  see  Mississippi  &  M. 


R.  Co.  v.  Ward,  2  Black  (  67  U.  S.), 
485,  17  L.  Ed.  311;  Roberts  v.  Mat- 
thews, 137  Ala.  523,  34  So.  624; 
Harniss  v.  Bulpitt  (Cal.  Ct.  App. 
1905),  81  Pac.  1022;  Spring  Valley 
Water  Works  v.  Fifield,  136  Cal.  14, 
68  Pac.  108;  Payne  v.  McKinley,  54 
Cal.  532;  Platte  &  D.  Ditch  Co.  v. 
Anderson,  8  Colo.  131,  6  Pac.  515; 
New  York,  N.  H.  &  H.  R.  Co.  v. 
Long,  72  Conn.  10,  43  Atl.  559; 
Stone  v.  Miles,  39  Conn.  426;  Dewey 
Hotel  Co.  v.  United  States  Elec.  L. 
Co.,  17  App.  D.  C.  356;  Brownhead 
v.  Grant,  83  Ga.  451,  10  S.  E.  116; 
Storm  v.  Barger,  45  111.  App.  173; 
Kissel  v.  Lewis,  156  Ind.  233,  59  N. 
E.  478;  Waltman  v.  Rund,  94  Ind. 
225 ;  Thelen  v.  Farmer,  36  Minn.  225, 
30  N.  W.  670;  Smith  v.  McConathy, 
11  Mo.  517;  Dover  v.  Portsmouth 
Bridge,  17  N.  H.  200;  Young  v. 
Scheu,  56  Hun,  307,  9  N.  Y.  Supp. 
349,  30  N.  Y.  St.  R.  608;  Wilcken 
v.  West  Brooklyn  R.  Co.,  1  N.  Y. 
Supp.  791;  Astor  v.  New  York  A.  Ry. 
Co.,  3  N.  Y.  St.  Rep.  188;  Ferrelly  v. 
City  of  Cincinnati,  2  Disn.  (Ohio) 
516;  City  of  Roseburg  v.  Abraham,  8 
Oreg.  509,  Code,  §  330;  Yost  v.  Phil- 
adelphia &  R.  R.  Co.  (Pa.),  29  Leg. 
Int.  85;  Richi  v.  Chattanooga  Brew- 
ing Co.,  105  Tenn.  651,  58  S.  W.  646; 
Meiners    v.     Frederick    Miller   Brew. 


622 


Remedies,  Parties,  Defenses  and  Damages. 


430 


§  430.  What  essentials  must  exist  to  sustain  private  action — 
Public  nuisance. — In  order  to  sustain  a  private  action  in  cases  of 
a  public  nuisance  some  special  privilege  or  right  in  person  or 
property  as  distinguished  from  the  public  right  must  have  been 
actually  violated,  or  there  must  exist  an  imminent  or  justly  ap- 
prehended danger.  The  damage  should  be  material  and  the  injury 
particular,  special,  and  peculiar  beyond  and  distinct  from  that 
suffered  by  the  public.  It  should  also  be  different  in  kind  and 
not  merely  different  in  degree. 2S 


Co.,  78  Wis.   364,   47  N.  W.   430,   10       N.  W.  986,  7  L.  R.  A.  673;  Glaissner 


L.  R.  A.  586;   Hall  v.  Kitson,  3  Pin. 
(Wis.)    296,  4  Chand.  20. 

28.  What  essentials  must  exist 
to  enable  private  action  to  be 
brought.  See  the  following  cases- 
Irwin  v.  Dixion,  9  How.  (50  U.  S.) 
10;  Georgetown  v.  Alexandria  Canal 
Co.,  12  Pet.  (37  U.  S.)  91,  9  L.  Ed. 
1012;  Siskiyou  Lumber  &  M.  Co.  v. 
Rostel,  121  Cal.  511,  53  Pac.  1118; 
Nolan  v.  New  Britain,  69  Conn.  668, 
38  Atl.  703;  Frink  v.  Lawrence,  20 
Conn.  117,  50  Am.  Dec.  274;  Nothing- 
ham  v.  Baltimore  &  P.  R.  Co.,  3  Mac- 
Arthur  (D.  C),  517;  Cannon  v. 
Merry,  116  Ga.  291,  42  S.  E.  274; 
Ison  v.  Manley,  76  Ga.  804;  Stuffle- 
beam  v.  Montgomery,  3  Idaho,  20,  26 
Pac.  125;  Oglesby  Coal  Co.  v.  Pasco, 
79  111.  164;  Piatt  v.  Chicago,  B.  &  Q. 
R.  Co.,  74  Iowa,  127,  37  N.  W.  107; 
Jones  v.  City  of  Chanute,  63  Kan. 
243,  65  Pac.  243;  School  Dist.  v.  Neil, 
36  Kan.  617,  59  Am.  Rep.  575,  14 
Pac.  253;  Beckham  v.  Brown,  19  Ky. 
L.  Rep.  519,  40  S.  W.  684;  Henry  v. 
Newburyport,  149  Mass.  582,  22  N. 
E.  75,  5  L.  R.  A.  179;  Proprietors  of 
Quincy  Canal  v.  Newcomb,  7  Mete. 
(48  Mass.)  276,  39  Am.  Dec.  778; 
Long  v.  Minneapolis,  61  Minn.  46, 
63  N.  W.  174;  Swanson  v.  Mississippi 
&  R.  R.  Boom  Co.,  42  Minn.  532,  44 


v.  Anheuser-Busch  Brew.  Assoc,  100 
Mo.  508,  13  S.  W.  707;  Fogg  v.  Ne- 
vada C.  O.  R.  Co.,  20  Nev.  429,  23 
Pac.  840,  43  Am.  &  Eng.  R.  Cas.  105; 
Dover  v.  Portsmouth  Bridge,  17  N. 
H.  200;  Humphreys  v.  Eastlack,  63 
N.  J.  Eq.  136,  51  Atl.  775;  Van 
Wagenen  v.  Cooney,  45  N.  J.  Eq.  24, 
16  Atl.  689;  Morris  &  E.  R.  Co.  v. 
Prudden,  20  N.  J.  Eq.  530 ;  Hinchman 
v.  Paterson  Horse  R.  Co.,  17  N.  J. 
Eq.  75;  Allen  v.  Board  of  Chosen 
Freeholders,  13  N.  J.  Eq.  38;  Halsey 
v.  Rapid  Transit  St.  R.  Co.,  47  N. 
J.  Eq.  3S0,  46  Am.  &  Eng.  R.  Cas.  76, 
20  Atl.  859;  Hill  v.  New  York,  15  N. 
Y.  Supp.  393;  Smith  v.  Lockwood,  13 
Barb.  (N.  Y.)  209;  Reyburn  v.  Saw- 
yer, 135  N.  C.  328,  65  L.  R.  A.  930, 
47  S.  E.  761;  Farmers'  Co-Op.  Mfg. 
Co.  v.  Albemarle  &  R.  R.  Co.,  117  N. 
C.  579,  29  L.  R.  A.  700,  23  S.  E.  43; 
Frizzle  v.  Patrick,  59  N.  C.  354;  Ett 
v.  Snyder,  5  Ohio  Dec.  523;  Parrish 
v.  Stephens,  1  Oreg.  73;  Rhymer  v. 
Fretz,  206  Pa.  230,  55  Atl.  959; 
Sparhawk  v.  Union  Pass.  Ry.  Co.,  54 
Pa.  401;  Thompson  v.  Charity  Hos- 
pital of  Pittsburg  (Pa.),  31  Pitts. 
Leg.  J.  N.  S.  15;  Brunner  v.  Schaffer, 
11  Pa.  Co.  Ct.  Rep.  550;  Smith  v. 
Cummings,  2  Pars.  Eq.  Cas.  (Pa.) 
92;  Baltzeger  v.  Carolina  Midland  R. 


623 


§  432       Kemedies,  Parties,  Defenses  and  Damages. 

§  431.  Private  action — Public  nuisance — Sewage.29 — If  de- 
posits from  a  sewer  constructed  and  maintained  by  a  city  causes 
peculiar  injury  to  the  owner  of  docks  and  constitutes  a  nuisance 
by  preventing  and  interfering  with  the  accustomed  and  lawful  use 
of  such  docks,  the  city  is  liable.30 

§  432.  Private  action — Public  nuisance — Highways.31 — The 
obstruction  of  a  public  highway  is  an  act  in  law  which  amounts  to 
a  public  nuisance  and  a  person  who  sustains  a  private  and  peculiar 
injury  from  such  an  act  may  maintain  an  action  to  abate  the  nuis- 
ance and  recover  the  special  damages  by  him  sustained.  The  ex- 
tent of  the  injury  is  not  generally  considered  very  important  It 
should  be  substantial,  of  course,  and  not  merely  nominal,  and  the 
fact  that  numerous  other  persons  have  been  injured  by  the  act  is  no 
ground  for  denial  of  relief.  When  the  damage  or  injury  is  com- 
mon to  the  public  and  special  to  no  one,  then  redress  must  be  ob- 
tained by  some  proceeding  on  behalf  of  the  public  and  not  by 
private  action.32 


Co.,  54  S.  C.  242,  71  Am.  St.  Rep. 
789,  32  S.  E.  358,  14  Am.  &  Eng.  R. 
Cas.  N.  S.  845;  South  Carolina 
Steamboat  Co.  v.  Wilmington  C.  & 
A.  R.  Co.,  46  S.  C.  327,  24  S.  E.  337, 
33  L.  R.  A.  541;  Baxter  v.  Winooski 
Turnpike  Co.,  22  Vt.  114,  52  Am. 
Dec.  84;  Beveridge  v.  Lacey,  3  Rand. 
(Va.)  63;  Talbot  v.  King,  32  W.  Va. 
6,  9  S.  E.  48;  Tiede  v.  Schneidt,  105 
Wis.  470,  81  N.  W.  826;  Mahler  v. 
Brunder,  92  Wis.  477,  66  N.  W.  502, 
31   L.   R.   A.   695. 

29.  See  §§  293  et  seq.  herein. 

30.  Peck  v.  City  of  Michigan  City, 
149  Ind.  670,  49  N.  E.  800,  citing  and 
considering  State  v.  City  of  Portland, 
74  Me.  268;  Franklin  Wharf  Co.  v. 
City  of  Portland,  67  Me.  46,  24  Am. 
Rep.  1 ;  Brayton  v.  City  of  Fall  River, 
113  Mass.  218,  18  Am.  Rep.  470; 
Haskell  v.  City  of  New  Bedford,  103 
Mass.  208;  Richardson  v.  City  of  Bos- 


ton, 19  How.  (U.  S.)  263,  270;  2 
Dillon's  Mun.  Corp.  (4th  Ed.)  §§ 
1047,  1048,  1051,  1051a,  and  p.  1330 
note;  Beach  on  Pub.  Corp.  §  760; 
Harrison's  Munic.  Manual,  p.  400; 
Tiedman  on  Munic.   Corp.   §  355. 

Special  damage  from  sewage. 
See  Lind  v.  San  Louis  Obispo,  109  Cal. 
340,  42  Pac.  437,  under  Cal.  Civ. 
Code,  §  3493;  Jacksonville  v.  Doan, 
145  111.  23,  33  N.  E.  878,  affg.  48  III. 
App.  247;  Schoen  v.  Kansas  City,  65 
Mo.  App.  134.  See  West  Arlington 
Imp.  Co.  v.  Mount  Hope  Retreat,  97 
Md.  191,  54  Atl.  982;  Sayre  v.  New- 
ark, 58  N.  J.  Eq.  136.  Compare 
Jones  v.  City  of  Chanute,  63  Kan. 
243,  65  Pac.  243. 

31.  See  §  212  et  seq,  herein. 

32.  Wakeman  v.  Wilbur,  147  N.  Y. 
657,  663. 

That  obstruction  of  highways 
gives   private   action.      See   Irwin   v. 


624 


Remedies,  Parties,  Defeases  and  Damages. 


433 


§  433.  Private  action — Public  nuisance — Navigable  waters.33 
— A  nuisance,  such  as  an  unreasonable  or  wanton  obstruction  of  a 
navigable  stream,  a  public  highway,  may  be  public  in  its  general 
effect  upon  the  public,  and  at  the  same  time  private  as  to  those 
individuals  who  suffer  a  special  and  particular  damage  therefrom, 
distinct  and  apart  from  the  common  injury.34  So  an  injunction 
against  a  public  nuisance  in  navigable  waters  will  be  sustained  in 
favor  of  a  private  individual  suffering  special  damage,  etc.,  es- 
pecially if  irreparable,  where  the  law  affords  no  adequate  remedy.30 


Dixion,  9  How.  (50  U.  S.)  10;  Packet 
Co.  v.  Sorrels,  50  Ark.  466,  8*  S.  W. 
683;  Siskiyou  Lumber  &  M.  Co.  *. 
Rostel,  121  Cal.  511,  53  Pac.  1118; 
Kiel  v.  Jackson,  13  Colo.  378,  22  Pac. 
504,  6  L.  E.  A.  254,  40  Am.  &  Eng. 
R.  Cas.  297;  Hargro  v.  Hogdon,  89 
Cal.  623,  26  Pac.  1106;  Chicago  Gen. 
Ry.  Co.  v.  Chicago,  B.  &  Q.  R.  Co., 
181  111.  605,  54  N.  E.  1026;  Martin 
v.  Marks,  154  Ind.  549,  57  N.  E.  249; 
Fossin  v.  Landry,  123  Ind.  136,  24  N. 
E.  96;  Miller  v.  Schenck,  78  Iowa, 
372,  43  N.  W.  225;  Townsend  v.  Ep- 
stein, 93  Md.  537,  52  L.  R.  A.  409,  49 
Atl.  629;  Glaessner  v.  Anheuser- 
Busch  Brew.  Assoc,  100  Mo.  508,  13 
S.  W.  707 ;  Cummings  v.  St.  Louis,  90 
Mo.  259,  7  West  Rep.  276;  Sheedy  v. 
Union  Press  Brick  Works,  25  Mo. 
App.  527;  Wakeman  v.  Wilbur,  147 
N.  Y.  657,  42  N.  E.  341,  71  N.  Y.  St. 
R.  266,  revg.  21  N.  Y.  St.  R.  556,  4 
N.  Y.  Supp.  938;  Irvine  v.  Atlantic 
Ave.  R.  Co.,  10  App.  Div.  560,  42  N. 
Y.  Supp.  1103;  Smith  v.  Mitchell,  21 
Wash.  536,  58  P.  667 ;  Fogg  v.  Nevada 
C.  O.  R.  Co.,  20  Nev.  429,  23  Pac. 
840,  43  Am.  &  Eng.  R.  Cas.  105; 
examine  McDowell  v.  Cambridge  R. 
Co.,  151  Mass.  159,  23  N.  E.  841. 

33.  See  §§  272,  273,  326,  herein. 

34.  Page  v.  Mille  Lacs  Lumber  Co., 
53  Minn.  492,  55  N.  W.  608    (judg- 


ment vacated  on  rehearing  for  want 
of  jurisdiction,  55  N.  W.  1119). 

35.  Frink  v.  Lawrence,  20  Conn. 
117,  50  Am.  Dec.  274. 

When  private  action  lies  for 
obstruction  of  navigable  ■waters. 
Spokane  Mill  Co.  v.  Post,  50  Fed. 
Rep.  429  (obstruction  of  use  for 
floating  logs)  ;  Page  v.  Mille  Lacs 
Lumber  Co.,  53  Minn.  492,  55  N.  W. 
608.  Judgment  vacated  on  rehearing 
for  want  of  jurisdiction,  55  N.  W. 
1119  (navigable  stream  obstructed 
by  booms,  etc. )  ;  Pascagoula  Boom  Co. 
v.  Dickson,  77  Miss.  587,  28  So.  724 
(boom  for  logs")  ;  Farmers'  &  Co-Op. 
Mfg.  Co.  v.  Albemarle  &  R.  R.  Co., 
117  N.  C.  579,  29  L.  R.  A.  700,  23 
S.  E.  43 ;  Cart  v.  West  Aberdeen  Land 
&  I.  Co.,  13  Wash.  616,  43  Pac.  890; 
examine  Swanson  v.  Mississippi  &  R. 
R.  Boom  Co.,  42  Minn.  532,  7  L.  R. 
A.  673,  44  N.  W.  986. 

When  private  action  will  not 
lie  for  obstruction  of  navigable  wa- 
ters. See  Lownsdale  v.  Gray's  Har- 
bor Boom  Co.,  117  Fed.  983;  Innis 
v.  Cedar  Rapids  I.  F.  &  N.  W.  R.  Co., 
76  Iowa,  165,  40  N.  W.  701,  2  L.  R. 
A.  282;  Lammers  v.  Brennan,  46 
Minn.  269;  South  Carolina  Steam- 
boat Co.  v.  Wilmington  C.  &  A.  R. 
Co.,  46  S.  C.  327,  24  S.  E.  337,  33 
L.  R.  A.  541 ;  South  Carolina  Steam- 


625 


§  435       Remedies,  Parties,  Defenses  and  Damages. 

And  a  private  person  may  maintain  an  action  to  restrain  the  con- 
struction of  piers  constituting  a  nuisance  in  the  navigable  waters 
of  a  State  where  he  alleges  and  shows  that  such  nuisance  is 
specially  injurious  to  himself  and  different  from  that  sustained  by 
the  general  public.36 

§  434.  Private  action — Public  nuisance — Bridges."7 — A  person 
who  suffers  injury  from  a  public  nuisance  in  having  his  raft,  boat 
or  barge  stopped  by  the  building  of  a  railroad  bridge  across  a 
navigable  stream,  may  have  his  action  against  the  nuisancer  for 
damages.38  But  where  the  erection  of  a  bridge  over  a  navigable 
stream  obstructs  navigation  a  suit  to  abate  the  obstruction  cannot 
be  maintained  by  an  individual  who  does  not  show  any  injury  or 
damage  different  in  kind  from  that  of  any  other  person  who  might 
undertake  to  use  the  stream  for  purposes  of  navigation  under 
similar  circumstances;  and  where  the  only  right  the  plaintiff 
is  deprived  of  is  the  public  right  of  navigation  in  the  stream, 
it  must  be  alleged  and  proven  that  he  suffers  some  special 
or  particular  injury  or  damage  different  not  only  in  degree 
but  in  kind  from  the  injury  or  damage  suffered  by  the  public  by 
such  obstruction.39 

§  435.  Private  action — Public  nuisance — Wooden  walls  or 
buildings.40 — A  plaintiff  who  shows  no  peculiar  damage  due  to 
the  breach  of  an  ordinance  in  building  a  wooden  wall  of  a  house 
within  three  feet  of  the  line  of  an  adjoining  lot  cannot  sustain  a 

boat  Co.  v.  South  Carolina  R.  Co.,  30  How.   (54  U.  S.)    518    (sustainable)  ; 

S.  C.  539,  4  L.  R.  A.  209;   Jones  v.  Innis  v.  Cedar  Rapids,  I.  F.  &  N.  W. 

St.  Paul  M.  &  M.  R.  Co.,  16  Wash.  R.  Co.,  76  Iowa,   165,  40  N.  W.  701. 

25    47  Pac.  226.  2  L.  R.  A.  282   (action  not  maintain- 

36.  Small  v.  Harrington,  (Idaho,  able)  ;  Viebbahn  v.  Board  of  Crow 
1904),  79  Pac.  461;  Rev.  Stat.  1887,  Wing  County  Comm'rs  (Minn.),  104 
§  3633.  N.     W.      1089      (action     sustained)  ; 

37.  See  §  274,   herein.  Thompson  v.  New  York  &  H.  R.  Co., 

38.  Little  Rock,  Mississippi  River  3  Sandf.  Ch.  (N.  Y.)  625  (defendants 
&  Tex.  R.  Co.  v.  Brooks,  39  Ark.  403,  not  specially  injured  have  no  defense 
43   Am.  Rep.   277.  on  ground  of  public  nuisance.) 

Private  rights  of  action  for  in-  39.  Thomas  v.  Wade    (Fla.    1904) 

jury  caused  by  bridge.     Pennsyl-       37  So.  743. 
vania   v.     Wheeling    Bridge    Co.,    13  40.  See  §  342,  herein. 

626 


Remedies,  Parties,  Defenses  and  Damages.        §  436 

bill  in  equity  against  such  erection,  as  where  the  "  wooden  side 
wall  of  defendant's  house  had  no  greater  tendency  to  cause  a  lack 
of  air  or  light  at  the  plaintiff's  premises,  or  to  confine  upon  them 
or  to  in  any  way  cause  these  noxious  odors  and  disturbing  noises 
than  a  wall  of  brick  or  stone  which  defendant  might  lawfully  have 
put  where  he  did  the  wooden  wall.  The  wooden  wall  would  be  less 
of  a  protection  in  case  of  fire,  and  even  might  be  a  source  of 
danger  in  that  respect.  But  the  use  of  land  for  building  is  one  of 
the  incidents  of  ownership.  The  erection  upon  it  of  structures 
which  in  themselves  are  not  noxious  or  unusually  dangerous  is*  not 
a  use  in  violation  of  the  private  rights  of  an  adjoining  owner, 
even  if  in  some  degree  the  enjoyment  of  the  adjacent  land  is  made 
less  complete  or  beneficial  than  if  the  land  were  bare.  The  breach 
of  the  ordinance  by  the  defendant  is  not  an  invasion  of  plaintiff's 
private  right.  All  the  injurious  results  of  the  erection  of  the  de- 
fendant's building  came  not  from  his  violation  of  the  ordinance, 
but  from  the  use  of  his  land  for  building.  The  plaintiff  shows 
no  peculiar  damage  due  to  a  breach  of  the  ordinance,  and  no  right 
to  have  private  relief  because  of  its  violation."  41  But  an  injunc- 
tion may  be  had  where  a  wooden  building  is  relocated  contrary  to 
the  prohibition  of  a  city  ordinance  and  by  reason  of  its  proximity 
causes  increased  danger  from  fire  and  special  injury  is  sustained 
by  an  adjoining  lot  owner.42 

§  436.  Private  action — Public  nuisance — Other  instances. — 
Within  the  rules  above  stated  a  private  action  lies  where  the  use 
and  enjoyment  of  property  is  injured  ;43  or  health  injuriously  af- 

41.  Hagerty     v.     McGovern,      187  43.  Use      and      enjoyment      of 

Mass.   479,   73   N.    E.    536,    per    Bar-  property.      See   Northern   P.  R.   Co. 

ker,  J.  v.  Whalen,   149  U.  S.  157,  37  L.  Ed. 

42.  Kauffman  v.  Stein,  138  Ind.  686,  13  Sup.  Ct.  Rep.  822;  Miller  v. 
49,  37  N.  E.  336,  46  Am.  &  Eng.  Corp.  Long  Island  R.  Co.,  Fed.  Cas.  No. 
Cas.  677,  46  Am.  St.  Rep.  368.  See  9,  580a;  Savannah  F.  &  W.  R.  Co.  v. 
McCloskey  v.  Kreling,  76  Cal.  511,  18  Parrish,  117  Ga.  898,  45  S.  E.  280,  14 
Pac.  433;  Blanc  v.  Murray,  36  La.  Am.  Neg.  Rep.  540,  542;  Bonner 
Ann.  162,  51  Am.  Rep.  7;  Horstman  v.  Welborn,  7  Ga.  296;  Adams  v. 
v.  Young,  13  Phila.  19;  Aldrich  v.  Ohio  Falls  Car  Co.,  131  Ind.  375,  31 
Howard,  7  R.  I.  199.  Compare  Hag-  N.  E.  57;  Hamilton  v.  Whitridge,  11 
erty  v.  McGovern,  187  Mass.  479,  73  Md.  128,  69  Am.  Dec.  184;  Kiel  v. 
N.  E.  536.  Jackson,  13  Colo.  378,  40  Am.  &  Eng. 

627 


436       Kemedies,  Parties,  Defenses  and  Damages. 


fected,44  as  in  case  of  stagnant  waters  breeding  sickness;45  where 
the  injury  arises  from  noxious,  unwholesome  odors  or  stenches;46 
where  unwholesome,  offensive  odors,  together  with  dust  and  smoke 
depreciates  the  value  of  one's  premises  and  injures  his  residence 
as  such  f  where  special  injury  is  occasioned  by  a  ditch  in  a  city 
lane;48  a  wreck  in  a  river  in  front  of  a  city  park;49  a  patrol  of 
strikers  interfering  with  a  business  ;50  a  cemetery  ;51  an  obstruction 
of  an  alley  preventing  ingress  and  egress  from  the  rear  of  private 
premises  ;52  railway  cars  in  a  street  hindering  a  lot  owner's  ingress 
and  egress;53  the  wrongful  construction  of  railroad  tracks  or  the 
wrongful  use  or  the  abuse  of  use  of  a  railroad;54  deposits  from 
river  dredging,  hindering  access  to  land;55  an  injury  occasioned 


R.  Cas.  297,  22  Pac.  504,  6  L.  R.  A. 
254;  Cain  v.  Chicago  R.  T.  &  P.  R. 
Co.,  54  Iowa,  255,  3  N.  W.  736,  6  N. 
W.  268;  Corby  v.  Chicago  R.  I.  &  P. 
R.   Co.,   150  Mo.   457,  52   S.  W.   282. 

44.  Savannah  F.  &  W.  R.  Co.  v. 
Parish,  117  Ga.  898,  45  S.  E.  280,  14 
Am.  Neg.  Rep.  540,  542;  De  Vaughn 
v.  Minor,  77  Ga.  809,  1  S.  E.  433; 
Hamilton  v.  Columbus,  52  Ga.  435. 

45.  Savannah  F.  &  W.  R.  Co.  v. 
Parish,  117  Ga.  898,  45  S.  E.  280,  14 
Am.  Neg.  Rep.  540,  542;  De  Vaughn 
v.  Minor,  77  Ga.  809,  1  S.  E.  433. 

46.  Lind  v.  San  Louis  Obispo,  109 
Cal.  340,  42  Pac.  497;  Jacksonville  v. 
Doan,  145  111.  23,  33  N.  E.  878,  affg. 
48  111.  App.  247 ;  Sayre  v.  Newark,  58 
N.  J.  Eq.  136,  42  Atl.  1068.  Exam- 
ine Jones  v.  Chanute,  63  Kan.  243, 
65  Pac.  243;  Fisher  v.  American  Re- 
duction Co.,  189  Pa.  419,  42  Atl.  36. 
See   §   herein  as  to   sewage. 

47.  Adams  v.  Ohio  Falls  Car  Co., 
131  Ind.  375,  31  N.  E.  57. 

48.  Runyon  v.  Bordine,  14  N.  J.  L. 
472. 

49.  Detroit  Water  Comm'rs  v.  De- 
troit, 117  Mich.  458,  76  N.  W.  70, 
5  Det.  L.  N.  305. 

50.  Vegelahn  v.  Gunter,  167  Mass. 


92,  43  Cent.  L.  J.  464,  35  L.  R.  A. 
722,  44  N.  E.  1077.  See  Lyon  v.  Wil- 
kins,  68  L.  J.  Ch.  146,  47  Wkly.  R. 
2£l,  (1899)  1  Ch.  255,  63  J.  P.  339, 
79  L.  T.  N.  S.  709. 

51.  Musgrove  v.  Catholic  Church, 
10  La.  Ann.  431. 

52.  Bannon  v.  Rohmeiser,  17  Ky. 
L.  Rep.  1378,  34  S.  W.  1084,  17  Ky. 
L.  Rep.  1380,  35  S.  W.  280. 

53.  Kiel  v.  Jackson,  13  Colo.  378, 
22  Pac.  504,  6  L.  R.  A.  254,  40  Am. 
&  Eng.  R.  Cas.  297.  See  Cain  v.  Chi- 
cago R.  I.  P.  R.  Co.,  54  Iowa,  255,  3 
N.  W.  736,  6  N.  W.  268;  Corby  v. 
Chicago  R.  I.  &  P.  R.  Co.,  150  Mo. 
457,  52   S.  W.  282. 

As  to  railroads  generally,  see  § 
317,  herein. 

54.  Glaessner  v.  Anheuser-Busch 
Brew.  Assoc,  100  Mo.  508,  13  S.  W. 
707;  Wilcken  v.  West  Brooklyn  R. 
Co.,  1  N.  Y.  Supp.  791.  See  cases 
cited  in  last  preceding  note.  Com- 
pare Fogg.  v.  Nevada  C.  O.  R.  Co.,  20 
Nev.  429,  23  Pac.  840,  43  Am.  &  Eng. 
R.  Cas.  105;  Miller  v.  Long  Island 
R.  Co.,   Fed.  Cas.  No.   9,580a. 

55.  Garitee  v.  Baltimore,  53  Md. 
422. 


628 


Remedies,  Parties,  Defenses  and  Damages.        §  436 

by  a  private  log-way  or  elevated  platform  with  a  steam  engine;08 
coal  sheds,  coal  dust  therefrom  and  noise  of  machinery  therein  ;57 
an  obstruction  of  a  tide  water  basin  to  the  injury  of  wharfage, 
dockage,  etc.,  rights-;58  a  beer  garden  which  is  a  constant,  con- 
tinuous   resort    for    fighting,    lascivious,    etc.,    persons;59    places 
variously  designated  as  houses  of  prostitution,  of  ill  fame,  brothels 
or  disorderly,  indecent  or  bawdy  houses  ;60  and  a  wooden  station  to 
an  elevated  railway,  the  material  not  being  of  the  kind  author- 
ized.61   Again,  a  person  who  has  sustained  such  special  damages, 
from  the  act  of  another  who  has  raised  a  dam  in  violation  of  a 
statute  as  entitles  him  to  a  private  remedy,  the  nuisance  being  a 
continuing  one,  and  who  has  recovered  double  damages  under  a 
statute  so  providing,  may  have  the  nuisance  enjoined,  if  the  facts 
warrant,  and  the  damages  awarded  are  only  for  damages  already 
sustained.62     So,  wantonly,  unnecessarily  or  oppressively  causing 
such  smells  as  to  annoy  another  in  a  special  and  peculiar  degree 
beyond  others  in  the  immediate  vicinity,  and  to  create  an  abiding 
nuisance  to  the  particular  injury  of  the  plaintiff's  property  is 
actionable ;  qualified,  however,  to  this  extent  that  a  certain  degree 
of  offensive  odor,  which  is  unavoidably  incident  to  a  business, 
must  be  endured  by  the  public.63     And  a  grogshop  which  is  a  re- 
sort for  disorderly  persons  who  disturb  and  annoy  one's  family 

56.  Adams  v.  Ohio  Falls  Car  Co.,  61.  Porth  v.  Manhattan  R.  Co.,  33 
131  Ind.  375,  31  N.  E.  57.  N.  Y.  St.  R.  709,  11  N.  Y.  Supp.  633, 

57.  Wylie  v.  Elwood,  134  111.  281,  58  Super.  Ct.  (26  Jones  &  S.)  366, 
25  N.  E.  570,  9  L.  R.  A.  726,  46  Am.  affd.  134  N.  Y.  615,  47  N.  Y.  St.  R. 
&  Eng.  R.  Cas.  513,  affg.  34  111.  App.  929,  32  N.  E.  649. 

244.  62.  Scheurich    v.    Southwest  Mis- 

58.  Easton  &  A.  R.  Co.  v.  Central  souri  Light  Co.,  109  Mo.  App.  406, 
R.  Co.,  52  N.  J.  L.  267,  31  Am.  &  424,  84  S.  W.  1003;  Rev.  Stat.  1899, 
Eng.    Corp.   Cas.    262,  Atl.  §  8752.     See  Richards  v.  Daugherty, 

59.  Kissel  v.  Lewis,  156  Ind.  233,  133   Ala.  569,   31   So.   934. 

59  N.  E.  478.  As  to  dams,   see  §§   319-327,  407, 

60.  Redway    v.    Moore,     2     Idaho,       herein. 

1036,  29   Pac.  104,   Idaho  Rev.   Stat.  63.  Pottstown   Gas.    Co.    v.    Mur- 

§    3633;    Hamilton   v.   Whitridge,    11  phy,   39  Pa.  257,  263. 

Md.   128,  69  Am.  Dec.   184;  Weakley  As  to  noisome  smells,  see  §§  157 

v.    Page,     (Tenn.),    53    S.    W.    551;  et  seq.  herein. 

Ingersoll  v.  Rousseau,  35  Wash.   92, 

76   Pac.    513. 

629 


§  437       Remedies,  Parties,  Defenses  and  Damages. 

constitutes  a  special  injury  when  located  near  his  premises  on  the 
highway  of  which  he  owns  the  fee.64  But  the  principles  by  which 
the  court  should  be  governed,  in  dealing  with  an  application  for  a 
preliminary  injunction  against  a  liquor  nuisance,  under  the 
statute,  are  the  same  as  apply  to  proceedings  to  enjoin  other  kinds 
of  public  nuisances.  The  ten  legal  voters  who  unite  in  a  petition 
represent  the  public  as  does  the  attorney-general  in  other  cases. 
The  fact  that  no  one  of  them  would  suffer  any  damage  by  the  con- 
tinuance of  the  nuisance  beyond  that  common  to  all  law-abiding- 
citizens  is  immaterial.65 

§  437.  State  or  public  entitled  to  remedy — Attorney-General 
or  other  prosecuting  officer. — A  State  may  sue  in  equity  where 
the  remedy  at  law  for  its  protection  is  not  so  efficacious  or 
complete  as  a  perpetual  injunction  against  interference 
with  its  rights;  and  where  conflicting  claims  cannot  be 
so  completely  or  conclusively  settled  at  law  as  by  a  comprehen- 
sive decree  covering  all  the  matters  in  controversy;  and  where 
proceedings  at  law  or  by  indictment  can  only  reach  past  or 
present  wrongs  and  will  not  adequately  protect  the  public  interests 
in  the  future.66  So  a  State,  as  a  political  corporation,  has  a  right 
to  institute  a  suit  in  any  of  its  courts  whether  the  general  public 
welfare  demands  it,  or  it  be  required  by  its  pecuniary  interests  and 
this  applies  to  a  right  to  obtain  relief  in  equity.67  And  so  the 
State  may  maintain  an  action  to  abate,  at  the  instance  or  suit  of, 
or  in  the  name  of  the  Attorney-General;68  or  it  may  have  a  rem- 

64.  Green  v.  Asher,  10  Ky.  L.  Rep.  ing  and  removing  of  phosphate  rock 
1006,  11   S.  W.  28G.  and  phosphatic  deposits  in  the  bed  of 

As  to  liquor  nuisance,  see  §§  Coosaw  River.  See  general  citations 
399-401,  herein.  in  "Notes  on  U.  S.  Reports,"  Vol.  12. 

65.  Carleton    v.    Rugg,    149    Mass.       p.  185. 

550,  55G,  5   L.  R.  A.    193,  22  N.  E.  67.  People  v.  City  of  St.  Louis,  10 

55,  14  Am.  St.  Rep.  550.     See  Davis  111.   (5  Gilm.)  351,  48  Am.  Dec.  339. 

v.  Auld,  96  Me.  559,  53  Atl.  118.  68.  See     Coosaw     Mining     Co.     v. 

66.  Coosaw  Mining  Co.  v.  South  South  Carolina,  144  U.  S.  550,  565, 
Carolina,  144  U.  S.  550,  12  Sup.  Ct.  36  L.  Ed.  537,  12  Sup.  Ct.  689  (ap- 
689,  36  L.  Ed.  537,  where  there  was  proved  State  v.  Lord,  28  Oreg.  529, 
an  illegal  interference  with  the  con-  31  L.  R.  A.  481,  43  Pac.  480).  So  in 
trol  by  the  State  of  the  digging,  min-  State  v.   Donovan,  10  N.  D.  203,   86 

C30 


Remedies,  Parties,  Defenses  am>  Damages. 


438 


edy  by  way  of  indictment,69  for  a  public  nuisance  in  an  action 
properly  brought  by  the  Attorney-General.70  So  the  Attorney-Gen- 
eral, or  other  like  public  prosecutor  may  not  only  sue  in  the  peo- 
ple's name,  but  he  may  sue  without  a  private  relator  for  equitable 
relief  in  a  proper  case.71  Again  a  tippling  house  and  gambling 
room  may  be  so  conducted  as  to  be  a  public  nuisance  and  the  Dis- 
trict Attorney  of  the  county  may  bring  a  civil  action,  where  the 
statute  so  provides,  to  abate  such  nuisance.72  And  a  fair,  in 
occupying  a  large  portion  of  a  public  street,  accompanied  with 
noise,  etc.,  is  a.  public  nuisance  of  which  a  court  of  equity  has 
jurisdiction  and  may  restrain  by  injunction  at  the  instance  of  the 
solicitor  general.73 

§  438.  Same  subject. — Taking  possession  of  a  public  road 
and  collecting  tolls  from  the  public  for  its  user  without  authority 
of  law  constitutes  a  public  nuisance,  for  which  injunction  is  the 
proper  remedy  at  the  suit  ex  relatione  of  the  prosecuting  officer  of 
the  county,74  and  such  officer  in  behalf  of  the  people  may  maintain 
an  action  both  legal  and  equitable  in  its  character,75  or  he  may 
bring  an  information  ex  officio,  or  upon  relation  of  a  private  in- 


N.  W.  709,  the  action  to  abate  was 
brought  by  the  State  upon  the  re- 
lation of  the  Assistant  Attorney-Gen- 
eral to  abate  a  liquor  nuisance  kept 
and  maintained  by  a  druggist. 

69.  Commonwealth  v.  Clarke,  1 
A.  K.  Marsh  (Ky.),323. 

70.  People  v.  Gold  Run  Ditch  & 
Mining  Co.,  66  Cal.  138,  56  Am.  Rep. 
80,  4  Pac.  1152.  See  Georgetown  v. 
Alexandria  Canal  Co.,  12  Pet.  (37  U. 
S.)  91. 

71.  People  v.  Truckee  Lumber  Co., 
116  Cal.  397,  58  Am.  St.  Rep.  183, 
48  Pac.  374,  39  L.  R.  A.  581.  Ex- 
amine Walker  v.  McNelly,  121  Ga. 
114,  48  S.  E.  718  (liquor  nuisance); 
Atty.-Genl.  v.  Jamaica  Pond  Acque- 
duct  Corp.,  133  Mass.  361  (draining 
pond     to    injury    of     health).       Seo 


Georgetown  v.  Alexandria  Canal  Co., 
12  Pet.  (37  U.  S.)  91;  Newark  Aque- 
duct Board  v.  Passaic,  45  N.  J.  Eq. 
393,  18  Atl.  106,  46  N.  J. 
Eq.  552;  State  v.  Paterson  (N. 
D.),  99  N.  Y.  67  (liquor  nui- 
sance) ;  State  v.  Donovan,  10  N.  D. 
203,  86  N.  W.  709;  Attorney-Genl.  v. 
Pope  (Can.),  N.  B.  Eq.  Cas.  272. 
Compare  Attorney-Genl.  v.  Hane,  50 
Mich.  447,  15  N.  W.  549. 

72.  People  v.  Wing,  147  Cal.  379. 

73.  City  Council  of  Augusta  v. 
Reynolds   (Ga.,  1905),  50  S.  E.  998. 

74.  State,  Jump  v.  Louisiana,  B. 
G.  &  A.  Gravel  Road  Co.  (Mo.  App. 
1906),  92  S.  W.   153. 

75.  People  v.  Metropolitan  Teleph. 
&  Teleg.  Co.,  64  How.  Pr.  (N.  Y.) 
120,  11  Abb.  N.  C.  304,  31  Hun,  596, 
2  C.  P.  304. 


G31 


§  439       Remedies,  Parties,  Defenses  and  Damages. 

dividual  to  restrain  a  public  nuisance  from  being  continued.7* 
But  it  is  also  decided  that  where  local  officials  have  authority  to 
protect  the  city  streets  the  Attorney-General  cannot  maintain  an 
action  in  behalf  of  the  people  of  the  State  against  a  corporation  to 
restrain  commission  of  a  nuisance  in  such  streets.77  An  equity 
suit  need  not,  however,  necessarily  be  brought  by  the  public  law 
officer  but  the  Legislature  has  power  to  designate  by  whom  a  suit, 
in  case  of  a  public  nuisance,  may  be  maintained,  there  being  no 
constitutional  provision  to  the  contrary.78  Again  a  prosecution 
may  be  maintained  in  behalf  of  the  public  for  a  public  nuisance.79 
But  in  case  of  a  private  and  not  a  public  nuisance  it  is  not  neces- 
sary that  either  the  State  or  the  public  prosecutor  should  apply  for 
relief.80 


§  439.  Municipal  and  quasi  municipal  corporations  entitled 
to  remedy — English  local  authorities. — A  city  may  also,  under 
proper  circumstances,  sue  in  equity,81  and  a  municipal  corporation 
can  maintain  an  action  in  equity  to  obtain  a  mandatory  injunc- 


76.  District-Atty.  v.  Lynn  &  B.  B. 
R.  Co.,  16  Gray   (Mass.),  242. 

77.  People  v.  Equity  Gaslight  Co., 
141  N.  Y.  232,  36  N.  E.  194,  56  N.  Y. 
St.  R.  825,  rev'g  3  Misc.  333,  52  N. 
Y.  St.  R.  317,  23  N.  Y.  Supp.  124. 

78.  Davis  v.  Auld,  96  Me.  559,  53 
Atl.  118.  See,  further,  as  to  statu- 
tory provisions,  Northern  Pac.  R.  Co. 
v.  Whalen,  149  U.  S.  157,  37  L.  Ed. 
686,  13  Sup.  Ct.  822,  under  Code 
Wash  Ty.  §§  605,  606;  Legg  v.  An- 
derson, 116  Ga.  401,  42  S.  E.  720, 
Acts  1899,  p.  73  ("blind  tiger"); 
Ruff  v.  Phillips,  50  Ga.  130,  under 
Rev.  Code,  §  4023;  Littleton  v.  Fritz, 
65  Iowa,  488,  54  Am.  Rep.  19,  Laws 
20th  Gen.  Assemb.  c.  143  (liquor  nui- 
sance) ;  Winthrop  v.  New  England 
Chocolate  Co.,  180  Mass.  464,  62  N. 
E.  969,  Stat.  1894,  c.  481,  §  11  con- 
strued; Merritt  Tp.  v.  Harp,  131 
Mich.  174,  9  Del.  L.  N.  302,  91  N.  W. 


156,  1  Comp.  Laws  1897,  §  2268; 
Lane  v.  Concord,  70  N.  H.  485,  85 
Am.  St.  Rep.  643,  49  Atl.  687  (ordi- 
nance construed)  ;  Newark  Aqueduct 
Board  v.  Passaic,  45  N.  J.  Eq. 
393,  18  Atl.  106,  46  N.  J.  Eq. 
552;  Board  of  Health  of  Green 
Island  v.  Magill,  17  N.  Y.  App.  Div. 
249,  45  N.  Y.  Supp.  710;  State  v. 
Bradley,  10  N.  D.  157,  86  N.  W.  354, 
Rev.  Codes,  §  7605;  Town  of  Britton 
v.  Guy  (S.  D.),  97  N.  W.  1045,  Rev. 
Civ.  Codes  1903,  §§  2400,  2403. 

79.  Charlotte  v.  Pembroke  Iron 
Works,  82  Me.  391,  8  L.  R.  A.  828, 
19  Atl.  902. 

"  Public "  defined  in  action  to 
abate.  Jones  v.  City  of  Chanute,  63 
Kan.  243,  65  Pac.  243. 

80.  King  v.  Morris  &  E.  R.  Co., 
18  N.  J.  Eq.  397. 

81.  Pittsburgh  v.  Epping-Carpen- 
ter  Co.  (Pa.),  29  Pitts.  L.  J.  N.  S. 
255;  Town    of    Britton    v.    Guy     (S. 


G32 


Remedies,  Parties,  Defenses  and  Damages.        §  439 

tion  compelling  the  removal  of  an  encroachment  upon  one  of  its 
public  streets,82  and  a  city  may  maintain  an  action  for  the  abate- 
ment of  a  nuisance  consisting  of  the  pollution  of  a  natural  stream 
running  within  its  limits.83  So  where  a  city  alleges  the  corporate 
capacity  of  a  village  as  plaintiff,  and  that  by  some  threatened  act 
defendant  will  create  a  nuisance,  or  threatens  to  or  is  about  to 
commit  some  act  that  will  endanger  the  health  of  the  inhabitants 
of  the  village  or  city,  or  that  will  result  in  damage  to  the  property 
of  the  city  or  village,  or  may  be  the  means  of  causes  of  action  for 
damage  against  the  city  or  village,  equity  will  grant  relief.  This 
rule  applies  to  a  case  where  defendant  seeks  to  connect  his  saloon 
with  a  narrow  public  bridge  by  erecting  certain  structures  or  con- 
necting platform.84  But  a  city  cannot  maintain  an  action  in 
equity  to  abate  a  nuisance  on  a  ground  of  injury  to  its  citizens 
where  the  statute  gives  that  remedy  only  to  "any  person  injured 
thereby."  85  A  town  may  also,  where  the  statute  so  authorizes, 
and  because  of  its  interest  in  highways  sue  for  equitable  relief  for 
an  injury  thereto,86  or  it  may  be  entitled  to  a  remedy  where  it 
sustains  a  special  injury  different  from  that  of  the  general  pub- 
lic.87    And  the  selectmen  of  a  town  may,  for  the  benefit  of  resi- 

Dak.),    97    N.    W.    1045;      Huron    v.  alleged  are  not  in  dispute,  as  between 

Bank  of  Volga,  8  S.  D.  449,  66  N.  W.  the  city  and  defendants,  the   former 

815.  is  the  best  judge  as  to  whether  the 

82.  Wanwatosa    v.    Dreutzer,    116  owner  needs  the  use  of  the  property. 

Wis.    117,   92   N.   W.   551,    and   such  A   cause  of  action    is   therefore   dis- 

right  is  not  dependent  upon  the  prior  closed,   and   the   exception   should   be 

making  and  service  of  any  statutory  overruled.     City   of   New    Orleans   v. 

order  under  the  statute  1898,  §  1330.  New     Orleans     Jockey     Club      (La., 

Action   by    city   to    abate— Ob-  1905),   40   So.   331. 
struction  of  streets.— For  the  pur-  83.  Belton  v.   Baylor  Female  Col- 
pose  of  an  exception  of  no  cause  of  ac-  lege  ( Tex.  Civ.  App. ) ,  33  S.  W.  680. 
tion,  where  a  city  alleges  that  certain  84.  Village  of  Sand  Point  v.  Doyle 
property     has     been     dedicated     for  (Idaho,  1905),  83  Pac.  598. 
streets,  that  the  title  thereto  is  vested  85.  City  of  Ottumwa  v.  Chinn,  75 
in  the   public,  for   whom   she  is  ad-  Iowa,    405,    39    N.    W.    670,    Code    § 
ministering,    that    the    public    is    de-  3331.     See,  also,  Code,  §§  456,  482. 
prived  of  the  use  thereof  by  persons  86.  Merritt  Tp.  v.  Harp,  131  Mich, 
who  unlawfully  occupy  and  obstruct  174,  91  N.  W.  156,  9  Det.  L.  N.  302. 
the  same,  and  that  such  obstruction  87.  Dover    v.    Portsmouth    Bridge, 
is  a  public  nuisance,  and  prays  that  17  N.  H.  200. 
the  same   be   abated,   and   the   facts 

633 


§  -139        Remedies,  Parties,  Defenses  and  Damages. 

dents  of  the  town,  have  an  injunction  granted  against  a  slaughter- 
house lawfully  established.88  So  a  town  suffering  special  in- 
jury from  a  public  nuisance  in  a  highway  may  sue.89  In  a  New 
Jersey  case  an  injunction  was  sought  compelling  specific  perform- 
ance of  an  agreement  relating  to  a  tidal  sewer  and  tidal  chamber 
for  collecting  sewage  by  the  non-performance  of  which  it  was  al- 
leged that  the  complainant  township  and  its  citizens  were  dam- 
aged in  their  property  and  their  health  menaced.  The  bill  was 
not  filed  for  the  protection  from  an  alleged  nuisance  of  property 
owned  by  complainant,  and  the  ownership  of  any  property  en- 
titled to  such  protection  was  not  alleged  by  the  bill ;  it  was  held 
that  as  mere  riparian  owners  of  property  situate  on  the  tide  water 
it  was  doubtful  whether  the  township  was  entitled  to  such  pro- 
tection ;  that  complainant  was  not  charged  by  law  with  any  such 
duties  relating  to  the  public  health  as»  to  entitle  it,  independent 
of  any  contract,  to  file  a  bill  for  protection  against  a  public 
nuisance  common  to  all  its  citizens,  and  that  the  Attorney-General 
alone  had  that  right.90  In  England  it  is  held  that  local  authori- 
ties may  themselves  sue  for  damages  where  they  are  actual  owners 
of  the  property  injured  and  also  may,  at  the  instance  of  the  At- 
torney-General, have  a  public  nuis*ance  abated.91  It  is  also  de- 
cided that  such  authorities  in  London  have  both  by  statute  and  by 
common  law  the  right  to  relief  in  equity  to  restrain  vacant  lands 
becoming  a  nuisance,  except  in  certain  cases  where  special  authority 
is  vested  in  them  to  abate  such  nuisance  themselves.92 

88.  Watertown  v.  Mayo,  109  Mass.  That  special  damage  must 
315,  12  Am.  Rep.  694.  have    been   suffered   by   such   local 

89.  Inhabitants  of  Charlotte  v.  authority  to  enable  it  to  sue  in  its 
Pembroke  Iron  Works,  82  Me.  391.  own  name  under  English  Public 
See,  also,  Inhabitants  of  New  Salem  Health  Act  of  1875,  §  107,  see  Totten- 
v.  Eagle  Mill  Co.,  138  Mass.  8.  ham  Urban  Dist.  Council  v.  William- 

90.  Belleville  Tp.,  Essex  County,  v.  son  (C.  A.),  65  L.  J.  Q.  B.  N.  S.  591, 
City  of  Orange  (N.  J.  Eq.,  1905),  62  75  Law  T.  Rep.  238  [1896],  2  Q.  B. 
Atl.  331.  353. 

91.  Attorney- Genl.  v.  Cogan  92.  Attorney-Genl.  v.  Tod-Heatly 
[1891],  2  Q.  B.  100.  (Ch.),  75  Law  T.  Rep.  452,  English 

Pub.  Health   (London),  Act  1891. 


r634 


Remedies,  Parties,  Defexses  axd  Damages.        §§  440-442 

§  44U.  Boards  of  health  entitled  to  remedy — Sanitary  in- 
spector.— A  board  of  health  is  entitled  to  relief  by  injunction 
where  the  statute  and  city  ordinance  so  provides  and  the  nuisance 
endangers  the  public  health,93  and  the  dut}'  of  a  local  board  of 
health  to  remove  nuisances  does  not  disentitle  them  to  their  remedy 
by  injunction  to  restrain  a  nuisance  wrongfully  imported  into 
their  district.94  And  an  agent  appointed  to  make  sanitary  inspec- 
tions may  also  bring  suit.9e> 

§  4-41.  Aqueduct  board  entitled  to  remedy.  —  An  aqueduct 
board  may  sue  in  equity,  not  as  a  public  agent,  but  as  an  in- 
dividual where  its  private  property  is  injured,  even  though  author- 
ized by  statute  to  sue.96 

§  442.  Corporations  entitled  to  remedy. — A  corporation  in 
jured  as  to  its  franchises  may  have  equitable  relief.97  And  it  is  no 
bar  to  the  maintenance  of  an  action  against  a  corporation  that  the 
plaintiff  was  a  stockholder  and  director  thereof,  where  he  had  not 
actually  co-operated  with  others  to  cause  the  nuisance.98  A  corpora- 
tion may  also  institute  proceedings  against  a  bridge  on  the  ground 
of  private  or  irreparable  damages.99  So  a  religious  corporation  or 
church,  whose  ordinary  use,  occupation  and  enjoyment  of  its  prop- 
erty is  wrongfully  injured  and  rendered  physically  uncomfortable, 

93.  Board  of  Health  of  Yonkers  v.  94.  Atty.-General  v.  Colney  Hatch 

Copcutt,   140  N.  Y.   12,  55  N.  Y.  St.  Lunatic  Asylums,   38   L.   J.   Ch.   265, 

R.  422,  23  L.  R.  A.  485,  35  N.  E.  443,  L.  R.  4  Ch.  146,   19  L.  T.  708,  17  W. 

aff'g  24  N.  Y.  Supp.  625,  71  Hun,  149,  R.  240. 

54  X.  Y.  St.  R.  311.  95.  Commonwealth    v.    Alden,    143 

That   action   must  be   brought  Mass.  113,  9  N.  E.  15. 

in    name    of    municipality    under  96.  Newark     Aqueduct     Board     v. 

Pub.  Health  Law,  §  21,  as  amended  Passaic,   45   N.   J.   Eq.   303,    18    Atl. 

Laws   1895,   chap.   203,   see   Board  of  106,  46  N.  J.  Eq.  552. 

Health  of  Green  Island  v.  Magill,  17  97.  Boston  &  L.  R.  Corp.  v.  Salem 

N.  Y.  App.  Div.  249,  45  N.  Y.  Supp.  &  L.  R.  Co.,  2  Gray  (Mass.),  1. 

710.  98.  Leonard  v.  Spencer,  108  N.  Y. 

Not  a  prerequisite  that  board  338,   13   N.   Y.   St.  R.   653,  28  Wkly. 

of   bealtb    determine    that    nui-  D.    368,    11    Cent.   Rep   98,    13   N.   E. 

sance  exists  to  entitle  party  injured  397,  affg.  34  Hun,  341. 

to  sue.     Baker  v.  Bohannan,  69  Iowa,  99.  Pennsylvania       v.       Wheeling 

60,  Laws  1880,  §  16.  Bridge  Co.,  13  How.   (54  U.  S.)    518. 

635 


§  443       Kemedies,  Parties,  Defenses  and  Damages. 

may  be  entitled  to  recover,  damages,  or,  if  the  annoyance  and  dis- 
comfort is  continuous,  relief  may  be  had  in  equity ;  and  legislative 
authority  given  defendant  will  not  operate  to  preclude  a  suit  for 
an  actual  nuisance  at  the  instance  of  a  person  suffering  injury 
different  from  that  of  the  public  at  large.100  But  an  action  on  the 
case  cannot  be  brought  by  trustees  for  disturbing  religious  worship 
by  noise;  there  must  be  some  injury  to  the  property,  immediate 
or  consequential.101  A  suit  may,  however,  properly  be  brought 
in  the  name  of  a  church  in  its  corporate  capacity;102  although 
a  right  to  recover,  or  to  equitable  relief,  may  be  so  far  limited 
by  statute  as  to  permit  only  of  a  remedy  where  the  injury  is  to 
property.103 

§  443.  Landowner  entitled  to  remedy — Landlord — Mort- 
gagor— Riparian  owners — Joinder. — An  action  or  suit  may  be 
brought  by  a  landowner,104  though  he  is  not  such  owner  at  the  time 
of  the  erection  of  the  nuisance.105  So  a  landlord  may  have  his 
right  of  action  where  the  wrongful  act  affects  his  interest  in  the 
property,  but  the  question  as  to  which  party  is  entitled  to  recover 
for  depreciation  of  rental  value  by  the  existence  of  a  nuisance  is 
said  to  have  involved  the  courts  in  much  perplexity.106  A  remedy 
also  exists  in   favor   of   successive   owners    and   occupants;107    a 

lOO.  Baltimore  &  Potomac  R.  Co.  105.  Miller   v.    Keokuk    &    D.    M. 

v.    Fifth  Baptist  Church,    108   U.   S.  R.  Co.,  63  Iowa,  680,  16  N.  W.  567. 

317,  27  L.  Ed.  739,  2  Sup.  Ct.  719.  106.  Miller     v.     Edison     Electric 

101-  First      Baptist      Church      in  Illuminating   Co.,    184   N.   Y.    17,    62 

Schenectady  v.  Utica  &  Schenectady  Cent.    L.   J.   243,   32   National    Corp. 

R.  Co.,  6  Barb.   (N.  Y.)   313.  Rep.  268,  per  Cullen,  C.  J.,  given  in 

102.  First  Baptist  Church  in  full  in  §  493,  post,  herein.  See  fur- 
Schenectady  v.  Schenectady  &  Troy  ther,  as  to  right  of  landlord  to  sue, 
R.  Co.,  5  Barb.   (N.  Y.)   79.  Sporato  v.  New  York  City,  78  N.  Y. 

103.  Northern  Pac.  R.  Co.  v.  Supp.  168,  75  N.  Y.  App.  Div.  304; 
Whalen,  149  U.  S.  157,  13  Sup.  Ct.  Francis  v.  Schoellkopf,  53  N.  Y.  154. 
822,  37  L.  Ed.  686.  Compare    Van    Siclen    v.    New    York 

104.  Leonard  v.  Spencer,  108  N.  City,  64  N.  Y.  App.  Div.  437,  72  N. 
Y.  338,  13  N.  Y.  St.  R.  653,  28  Wkly.  Y.  Supp.  209;  Rich  v.  Basterfield,  2 
D.  368,  15  N.  E.  397,  11  Cent.  Rep.  C.  &  K.  257;  Simpson  v.  Savage,  37 
98,   aff'g  34   Hun,   341 ;      Garland   v.  Eng.  L.  &  Eq.  374. 

Aurin,  103  Ten.  555,  76  Am.  St.  Rep.  107.  Staple    v.    Spring,    10    Mass. 

699,  53  S.  W.  940.  72. 

636 


Remedies,  Parties,  Defenses  and  Damages.        §  Hi 

grantee  of  land  subject  to  a  nuisance,"  even  though  having  notice 
where  the  nuisance  is  continuing"'  and  even  where  the  owner  sells 
pending    suit,    he   may    recover    damages;""    although    the    lots 
which  he  owns  are  vacant.'"     Again,  the  fact  that  the  property 
has  been  sold  to  a  mortgagee  does  not  prevent  the  mortgagor,  still 
in  possession,  from  maintaining  aD  action  to  recover  damages  for 
a  nuisance  occasioned  by  smoke,  soot,  etc.,  and  for  loss  of  ten- 
ants"2    And  where  the  statute  so  provides  an  owner  may,  even 
though  not  in  actual  occupation  of  the  land,  sue  where  a  fe nee  is 
Maliciously  erected  and  is  calculated  to  lessen  his  rentals  or  his 
"mfort  and  enjoyment  of  his  estate.-     A  lower  riparian  owner 
mav  also  sue:"4  and  lower  riparian  owners  may  sue  jointly  to 
re/rain  pollution  of  a  stream,  as  they  all  have  a  common  grievance 
for  an  injury  ef  the  same  kind."5     So  abutting  owners,"'  several 
or  separate  owners,"8  and  owners  of  distinct  or  several  interests  or 
Jnemen  s  may  join  in  an  action;"'  and  whether  such  premises 
are  in  their  occupation  or  that  of  their  tenants  they  may  join 
with  such  tenants  in  an  action.-    But  one  who  repurchases  from 
his  own  grantee,  there  being  no  reservation,  cannot  recover  for  the 


108.  Eastman  v.  Amoskeag  Mfg 
Co ,  44  N.  H.  143,  82  Am.  Dec.  201 ; 
Townes  v.  Augusta,  52  S.  C.-396,  29 
S.  E.  851.  Examine  Hughes  v.  Gen- 
eral Electric  Light  &  Power  Co.,  21 
Ky.  L.  R.  1202,  54  S.  W.  723. 

As  to  coming  into  a  nnisance 
see  §  97,  herein. 

109.  Townes  v.  Augusta,  52  S.  C. 
396,  29  S.  E.  851. 

11.0.  Demby  v.  Kingston,  14  N.  Y. 
Supp.  601,  38  N.  Y.  St.  R.  42,  60 
Hun,  294,  aff'd  133  N.  Y.  538,  44  N. 
Y.  St.  R.  929,  30  N.  E.  1148. 

111,.  Ruckman  v.  Green,  9  Hun 
(N.  Y.),  225. 

112.  Lursscn  v.  Lloyd,  76  Md. 
360,  367,  25  Atl.  294. 

1,13.  Smith  v.  Morse,  148  Mass. 
407,  19  N.  E.  393,  Mass.  Stat.  1887, 
chap.  348. 


1.14.  Middlestadt  v.  Waupaca 
Starch  &  P.  Co.,  93  Wis.  1,  66  N.  W. 

713. 

1.15.  Strobel  v.  Kerr  Salt  Co.,  164 
N.  Y.  303,  58  N.  E.  142,  51  L.  R.  A. 
687,  rev'g  49  N.  Y.  Supp.  1144. 

116.  Cadigan  v.  Brown,  120  Mass. 

493. 

117.  Herrick  v.  Cleveland,  7  Ohio 

C.  C.  470. 

11,8.  Sullivan,  Town  of,  v.  Phil- 
lips, 110  Ind.  320,  11  N.  E.  30. 

119.  Grant  v.  Schmidt,  22  Minn. 
1.     See  Peck  v.  Elder,  3  Saridf.    (N. 

Y.)   126. 

120.  Snyder  v.  Cabell,  29  W.  Va. 
48,  1  S.  E.  241.  See  Ingraham  v. 
Dunnell,  5  Mete.  (Mass.)  118;  Do- 
remus  v.  City  of  Patterson,  65  N.  J. 
Eq.  711,  55  Atl.  304,  rev'g  63  N.  J. 
Eq.  605,  52  Atl.  1107. 


637 


§  444       Remedies,  Parties,  Defenses  axd  Damages. 

period  he  was  out  of  title  even  though  he  received  the  rents  for  his 
own  use  during  said  period,121  nor  can  recovery  be  had  by  an  ad- 
joining owner  from  the  fact  that  a  building  not  per  se  a  nuisance 
may  become  one.122 

§  444.  Parties  entitled  to  remedy — Necessity  of  interest  in 
land— Parties  in  possession.123 — It  is  held  that  it  is  not  neces- 
sary that  one  residing  on  land  should  have  an  interest  therein  to 
warrant  a  recovery  for  an  injury  to  his  health.124  Again,  one  who 
is  lawfully  in  possession  of  land,  even  though  he  has  no  freehold 
estate,  is  entitled  to  recover  for  injury  to  such  possession.125  But 
plaintiffs  cannot  recover  for  any  injury  arising  from  a  destruc- 
tion of  crops  by  reason  of  an  alleged  nuisance  prior  to  the  date  of 
the  conveyance  of  the  land  to  them,  unless  they  show  that  they 
were  in  possession  of  the  property  or  entitled  to  such  possession, 
and  were  entitled  to  recover  for  injuries  to  such  possession.126 

§  445.  Lessee  or  tenant  entitled  to  remedy  —  Joinder.  — 
Lessees  or  tenants  in  possession  may  maintain  an  action  or  suit 
for  injury  sustained  during  the  tenancy.128     And  the  fact  that  the 

121.  Thompson  v.  Pennsylvania  Harris,  1  N.  Y.  (1  Comst.)  223;  Gar- 
R.  Co.,  51  N.  J.  L.  42,  15  Atl.  683.  land  v.  Aurih,   103   Tenn.   555,  53   S. 

122.  Van  De  Vere  v.  Kansas  City,  W.  940,  76  Am.  St.  Rep.  699.  See 
107  Mo.  83,  17  S.  W.  675,  35  Am.  &  next  section. 

Eng.  Corp.  Cas.  104.  Action  on  case  lies  in   favor  of 

123.  See  §§  408,  436,  445,  herein.  party    in     possession,     even     without 

124.  Ft.  Worth  &  R.  G.  R.  Co.  v.  title,  for  damages  caused  by  a  nui- 
Glenn,  97  Tex.  586,  80  S.  W.  992,  65  sance.  Crommelin  v.  Coxe  &  Co.,  30 
L.  R.  A.  618.  Ala.  318,  68  Am.  Dec.  120. 

But   as    to    husband    living    in  Allegation   of   ownership    does 

wife's    honse    compare    Whalen    v.  not  necessitate  proof  of  title,  as 

Baker,   44  Mo.   App.  290;   Kavanagh  possession     is    sufficient.       Quinn    v. 

v.   Barber,   131   N.  Y.   211,    30  N.  E.  Winter,  7  N.  Y.  Supp.  755,  28  N.  Y. 

235,  43  N.  Y.  St.  R.  283,  15  L.  R.  A.  St.  R.  178. 

689,  rev'g  59  Hun,  60,  12  N.  Y.  Supp.  126.  Watson       v.       Colusa-Parrot 

603,  35  N.  Y.  St.  R.  430.  Mining     &      Smelting     Co.       (Mont., 

125.  Hopkins   v.    Baltimore    &    P.  1905),  79  Pac.  14. 
R.  Co.,  6  Mackey  (D.  C),  311;  Bon-  127.  See  §  444. 

ner  v.  Welborn,   7  Ga.   296;   Ellis  v.  128.  Central  R.  R.  v.  English,  73 

Kansas  City,  St.  J.  &  C.  B.  R.  Co.,  63       Ga.  366;  Ellis  v.  Kansas  City  R.  R. 
Mo.  131,  21  Am.  Rep.  430;  Cowes  v.       Co.,  63  Mo.   131,   21  Am.  Rep.   436; 

638 


Remedies,  Parties,  Defeases  and  Damages.        §  445 


lease  was  made  subsequent  to  the  nuisance  does  not  preclude  the 
lessee's  recovery.129  Again,  a  person  who  has  only  a  leasehold  in- 
terest may  sue  in  equity  to  enjoin  the  continuance  of  a  nuisance, 
which  is'  not  one  to  the  freehold,  but  one  which  occasions  an  injury 
to  his  business-,  for  his  right  to  maintain  an  injunction  suit  must 
be  determined  by  the  character  of  the  injury  done  him,  and  the 
effectiveness  of  his  remedies  at  law  and  not  upon  the  title  by 
which  he  holds  the  property  in  which  he  conducts  the  business  in- 
jured.130 So  the  fact  that  plaintiff  does  not  own  the  premises 
which  he  occupies,  but  occupies  it  as  a  tenant,  does  not  preclude 
him  from  a  remedy  where  a  nuisance  affects  his  health  and  comfort 
and  that  of  his  family ;  and  the  right  of  the  tenant  as  a  plaintiff  in 
injunction  is  destroyed  neither  because  the  joinder  with  him  of 
the  owner  of  the  premises  in  the  petition  nor  because  of  the  fact 
of  a  joinder  with  him  as  a  relator,  where  such  tenant  stands  on 
his  own  rights  and  not  on  the  owners.131  And  where  a  nuisance  is 
not  of  a  permanent  character,  and  could  not  at  any  time  be  dis- 
continued, a  tenant  can  maintain  an  action  for  damages.132     So  a 


State,  Violett  v.  King,  46  La.  Ann. 
78,  14  So.  423;  Bly  v.  Edison  Elec. 
Ilium.  Co.,  172  N.  Y.  1,  64  N.  E. 
745,  58  L.  R.  A.  500,  revg.  66  N.  Y. 
Supp.  737;  Pritchard  v.  Edison  Elec. 
Illuminating  Co.,  92  N.  Y.  App.  Div. 
178,  87  N.  Y.  Supp.  225,  affd.  179 
N.  Y.  364,  72  N.  E.  243;  Hoffman 
v.  Edison  Elec.  Illuminating  Co.,  87 
N.  Y.  App.  Div.  371,  84  N.  Y.  Supp. 
437;  Dumois  v.  New  York  City,  76 
N.  Y.  Supp.  161,  37  Misc.  614;  Hud- 
son R.  R.  Co.  v.  Loeb,  7  Rob.  (30 
N.  Y.  Super.),  418;  Lockett  v.  Ft. 
Worth  &  R.  G.  R.  Co.,  78  Tex.  211, 
14  S.  W.  564.  See  Miller  v.  Edison 
Elec.  Ilium.  Co.,  184  N.  Y.  17,  62 
Cent.  L.  J.  243,  32  National  Corp. 
Rep.  268,  revg.  97  N.  Y.  App.  Div. 
638,  which  affd.  66  N.  Y.  App.  Div. 
470,  73  N.  Y.  Supp.  376,  which  rev'd 
33    Misc.    664,    68    N.    Y.    Supp.    90 


(case  is  given  in  full  in  the  subdi- 
vision on  damages,  §  493,  under  this 
chapter. ) 

When  lessee  cannot  sue.  See 
Lapere  v.  Luckey,  23  Kan.  534,  33 
Am.  Rep.  196;  Clark  v.  Thatcher,  9 
Mo.   App.  436. 

Lessee — warehouse  part  of 
abutment  of  Brooklyn  bridge, 
held  not  entitled  to  enjoin  widening 
of  viaduct.  Ackerman  v.  New  York 
&  B.  Bridge  Trustees,  10  N.  Y.  App. 
Div.  22,  41  N.  Y.  Supp.  810. 

129.  Hoffman  v.  Edison  Elec.  Il- 
luminating Co.,  87  N.  Y.  App.  Div. 
371,  84  N.  Y.  Supp.  437. 

130.  Nisbet  v.  Great  Northern 
Clay  Co.    (Wash.,  1905),  83   Pac.   14. 

131.  State,  Violett  v.  Judge,  46 
La.  Ann.  78,  84. 

132.  Lurssen  v.  Lloyd,  76  Mci, 
360,  367. 


639 


§  446       Remedies,  Parties,  Defenses  and  Damages. 

tenant  of  property  situated  in  a  city  is  the  owner  of  its  use  for  the 
term  of  his  rent  contract,  even  though  he  has  no  estate  in  the 
land  and  can  recover  damage  for  any  injury  to  such  use 
occasioned  by  the  erection  and  maintenance  of  a.  nuisance,  al- 
though it  is  a  public  one,  in  the  street  adjacant  to  or  in  the 
immediate  neighborhood  of  the  premises.133  And  an  occupant  of 
town  lot  or  other  lands,  whether  owner  in  fee,  life  tenant  or  lessee, 
may  recover  damages.134  But  a  tenant's  wife  cannot,  it  is  held,  main- 
tain an  action  after  his  decease.135  A  husband  need  not  join  his 
wife  where  they  are  tenants  by  the  entirety  ;136  Nor  need  a  wife 
join  the  heirs  of  her  deceased  husband  in  a  suit  by  her,  where 
he  had  purchased  the  land  with  money  derived  from  her  father's 
estate,  but  had  held  the  title  thereto,  she  having  held  possession.137 
Nor  need  a  tenant  in  common  join  his  co-tenant.138 

§  446.  Other  parties  generally  entitled  to  remedy — Joinder. — 
A  citizen  injuriously  affected  in  his  health  or  whose  life  is  en- 
dangered by  a  sewage  nuisance  may  have  the  same  enjoined.139 
So  a  statutory  authorization  to  a  citizen  to  bring  a  suit  to  enjoin 
a  liquor  nuisance  is  not  unconstitutional.140  A  private  party  nomi- 
nally sues  for  himself  but  really  on  behalf  of  all  who  are  or  may 
be  injured.  If  the  plaintiff  has  partners  in  the  business  affected 
by  the  nuisance  he  need  not  join  them  as  plaintiffs.141  There  may, 
however,  be  such  a  community  of  interest,  or  the  injury  sustained 
may  be  of  such  common  interest  to  all,  that  there  may  be  a  joinder 

133.  Bentley  v.  City  of  Atlanta,  140.  Littleton  v.  Fritz,  65  Iowa, 
92  Ga.  623.  488,  22  N.  W.  641,  54  Am.  Rep.  19; 

134.  Garland  v.  Aurin,  103  Tenn.  State  v.  Bradley,  10  N.  D.  157,  86  N. 
555,  76  Am.  St.  Rep.  699.  W.  354. 

135.  Ellis  v.  Kansas  City  R.  R.  "Mayor  and  councilmen "  in 
Co.,  63  Mo.  131,  21  Am.  Rep.  436.  suit  by  individual  citizens,  under 

136.  Demby  v.  Kingston,  38  N.  statutory  authority,  as  words  of  de- 
Y.  St.  R.  42.  scription  are  surplusage  and  will  be 

137.  Houston  E.  &  W.  T.  R.  Co.  stricken  out.  Legg  v.  Anderson,  116 
v    Charwaine,  30  Tex.  Civ.  Ap.  633,  Ga.  401,  42  S.  E.  720. 

71  S.  W.  401.  141.  Mississippi  &  Mo.  R.  R.  Co. 

138.  Woodruff  v.  Gravel  Mining  v.  Ward,  2  Black  (67  U.  S.),  485,  17 
Co.,  8  Sawy.   (U.  S.  C.  C.)   628.  K  Ed.  311. 

139.  Waycrosa   City  v.  Hauk,   113 
Ga.  963,  39  S.  E.  577. 

640 


Remedies,  Parties,  Defenses  and  Damages.        §  448 

of  several  parties  plaintiff.142  But  where  employees  get  intoxi- 
cated by  liquor  voluntarily  purchased  by  them  at  a  house  where 
it  is  kept,  their  employer's  interest  in  them  and  their  services 
is  not  such  as  to  entitle  him  to  equitable  relief  against  such 
house  as  a  nuisance.143 

§  447.  Person  creating  nuisance  liable — General  rule.  —  It 
is  a  general  rule  that  the  person  who  erects,  constructs,  or  creates 
a  nuisance  is  liable,144  for  the  injury  thereby  occasioned  in  such 
civil  or  criminal  action,  suit  or  proceeding,  as  the  nature  of 
the  nuisance  and  the  surrounding  attendant  circumstance  warrant. 
"While  this  rule  runs  through  the  decisions  as  a  fundamental  one, 
nevertheless,  it  is  subject  to  such  extensions,  qualifications,  limi- 
tation, exception  and  conditions  as  hereinafter  appear. 


§  448.  Liability  of  municipal  and  quasi  muincipal  corpora- 
tions.145— Subject  to  certain  exceptions  and  qualifications,146 
the  general  rule  is  that  a  municipal  corporation  cannot  injure 
another  in  his  property  or  personal  rights  by  erecting, 
creating  or  maintaining  a  nuisance  any  more  than  a  natural  per- 
son and  it  is  liable  in  the  same  manner.147     So  where  a  city's 

142.  Demarest  v.  Hardhan,  34  N.  89  Ga.  257,  15  S.  E.  308;  Jordan  v. 
J.  Eq.  469;  Davidson  v.  Isham,  9  N.  Helwig,  1  Wils.  (Ind.)  447  (approved 
J.  Eq.  186;  Astor  v.  New  York  &  A.  but  distinguished  Helwig  v.  Jordan, 
R.  Co.,  3  N.  Y.  St.  R.  188;  Jung  v.  53  Ind.  21,  23,  21  Am.  Rep.  189); 
Neraz,  71  Tex.  396,  9  S.  W.  344.  Ex-  Staple  v.  Spring,  10  Mass.  72;  Plumer 
amine  Ruff  v.  Phillips,  50  Ga.  130;  v.  Harper,  3  N.  H.  88,  14  Am.  Dec. 
Doremus  v.  City  of  Paterson,  65  N.  333;  Brown  v.  Woodworth,  5  Barb. 
J.  Eq.  711,  55  Atl.  304,  revg.  63  N.  J.  (N.  Y.)  550;  Anderson  v.  Dickie,  26 
Eq.  605,  52  Atl.  1107;  Brady  v.  How.  Pr.  (N.  Y.)  105;  Lohmiller  v. 
Weeks,  3  Barb.  (N.  Y.)  157;  Peck  v.  Indian  Ford  Water  Power  Co.,  51 
Elder,  3  Sandf.   (N.  Y.)    126;  Water-  Wis.  683,  8  N.  W.  601. 

town  v.  Cowen,  4  Paige  (N.  Y.),  510,  145.  See    §§     264,     347,     353-358, 

27  Am.  Dec.  80;   Sparhawk  v.  Union  herein. 

Pass.  R.  Co.,  54  Pa.  401.  146.  Liability      of      municipal 

143.  Northern  P.  R.  Co.  v.  and  quasi-municipal  corpora- 
Whalen,  149  U.  S.  157,  13  Sup.  Ct.  tions.— Negligence— Officers  and 
822,  37  L.  Ed.  686.  agents.— Ministerial,   etc.,  acts.      See 

144.  Grady    v.    Wolsner,    46    Ala.  §§  279,  et  seq.,  354,  herein. 

381,  7  Am.  Rep.  593;   Conner  v.  Hall,  147.  Valparaiso     v.    Moffit     (Ind. 

641 


§  448       Kemedies,  Parties,  Defenses  and  Damages. 


sewage  pollutes  the  water  of  a  river  to  an  almost  intolerable  degree, 
a  preliminary  injunction  will  issue  pending  summary  hearing.148 
And  an  indictment  lies  against  a  city  for  maintaining  a  sewer 
outfall  into  the  sea  which  constitutes  a  permanent  injury  to 
health  and  a  failure  in  performance  of  a  public  duty.149  But  it 
is  held  that  a  city  is  not  liable  for  loss  of  life  occasioned  by  an 
explosion  of  fire  works  during  political  campaigns  and  cele- 
brations where  the  acts  of  its  aldermanic  board,  in  suspending  at 
such   period    a   prohibitory   ordinance   as  to  fireworks,    amounts 


App. ) ,  39  N.  E.  909 ;  Willett  v.  St. 
Albans,  69  Vt.  330,  38  Atl.  72.  Ex- 
amine, also,  the  following  cases: 
Baltimore  &  Potomac  R.  Co.  v.  Fifth 
Baptist  Church,  108  U.  S.  317;  City 
of  Birmingham  v.  Land,  137  Ala. 
538,  34  So.  613;  Union  Springs  v. 
Jones,  58  Ala.  654;  Atlanta  v.  War- 
nock,  91  Ga.  210,  '18  S.  E.  135,  23  L. 
R.  A.  301;  Butler  v.  Mayor  of 
Thomasville,  74  Ga.  570;  Hamilton 
v.  Mayor  of  Columbus,  52  Ga.  435; 
Phinizy  v.  Augusta,  47  Ga.  263; 
Morrison  v.  Hinkson,  87  111.  587,  29 
Am.  Rep.  77;  Jacksonville  v.  Lam- 
bert, 62  111.  519;  Seymour  v.  Cum- 
mins, 119  Ind.  148,  5  L.  R.  A.  126; 
Ross  v.  Clinton,  46  Iowa,  606,  26  Am. 
Rep.  169;  Long  v.  City  of  Emporia, 
59  Kan.  46,  51  Pac.  897;  State  v. 
Portland,  74  Me.  268,  43  Am.  Rep. 
586;  Franklin  Wharf  Co.  v.  Port- 
land, 67  Me.  46,  24  Am.  Rep.  1; 
Boston  Rolling  Mills  v.  Cambridge, 
117  Mass.  396;  Washburn  Mfg.  Co. 
v.  Worcester,  116  Mass.  458;  Bray- 
ton  v.  Fall  River,  113  Mass.  218,  18 
Am.  Rep.  470;  Ashley  v.  Port  Huron, 
35  Mich.  296,  24  Am.  Rep.  552; 
State  v.  Dover,  46  N.  H.  452;  Field 
v.  West  Orange,  36  N.  J.  Eq.  118; 
Dumois  v.  New  York  Cfty,  76  N.  Y. 
Supp.   161,  37  Misc.  614;  Noonan  v. 


Albany,  79  N.  Y.  480;  Lynch  v. 
Mayor  of  New  York,  76  N.  Y.  60,  32 
Am.  Rep.  271;  Byrnes  v.  City  of  Co- 
hoes,  67  N.  Y.  204,  affg.  5  Hun,  602; 
Farrell  v.  Mayor  of  N.  Y.,  5  N.  Y. 
Supp.  580,  22  N.  Y.  St.  R.  469,  affg. 
20  N.  Y.  St.  R.  12,  5  N.  Y.  Supp. 
672;  Radcliff  v.  Mayor  of  Brooklyn, 
4  N.  Y.  195,  53  Am.  Dec.  157;  City 
of  Cleveland  v.  Beaumont,  2  Ohio 
Dec.  172,  4  Ohio  Dec.  reprint  444; 
Inman  v.  Tripp,  11  R.  I.  520,  23  Am. 
Rep.  520;  Chattanooga  v.  Dowling, 
101  Tenn.  344,  47  S.  W.  700;  Chalk- 
ley  v.  Richmond,  88  Va.  402,  14  S. 
E.  339,  15  Va.  L.  J.  66;  Harper  v. 
Milwaukee,   30  Wis.   365. 

Petition  must  show  munici- 
pality's control  over  alleged  nui- 
sance. See  Martinowsky  v.  Hanni- 
bal, 35  Mo.  App.  70. 

When  proceeding  in  nature  of 
bill  of  review  against  city  lies 
at  instance  of  citizen  to  enforce  de- 
cree. See  State  v.  Mobile,  24  Ala. 
701. 

148.  Grey  (Simmons)  v.  Pater- 
son,  58  N.  J.  Eq.  1,  42  Atl.  749. 

149.  State  v.  Portland,  74  Me. 
268,  43  Am.  Rep.  586.  See  Kolb  v. 
City  of  Knoxville,  111  Tenn.  311,  76 
S.  W.  823. 


642 


Remedies,  Parties,  Defenses  and  Damages.        §  44!) 

to  a  repeal  of  such  ordinance  and  not  to  a  license.1"0  And  al- 
though a  city  permits  a  railroad  to  improve  its  right  of  way  by 
lowering  its  tracks,  it  is  held  not  liable  to  an  abutting  occupant  for 
the  damage  consequent  upon  smoke,  noise,  etc.,  necessitated  by 
such  work,  it  not  appearing  that  such  occupant  was  injured  by  the 
change  of  grade.151  And,  although  the  licensee  of  wagons  for  the 
transfer  and  deposit  of  refuse  maintains  them  in  such  a  condi- 
tion as  to  constitute  a  nuisance,  still  the  city  granting  such 
license  is  not  liable.152  A  town  may  also  be  liable  under  a  statu- 
tory provision.153  And  an  indictment  may  be  had  against  a 
borough.154 

§  449.  Liability  of  officers  of  municipal,  etc.,  corporations. — 
A  board  of  chosen  freeholders  may  be  indicted  for  neglect  of 
duty  where  it  is  necessary  to  build  or  repair  a  bridge  over  a  high- 
way and  they  wilfully  refuse  to  do  so.  It  is  not  within  their 
discretion  to  determine  whether  the  road  is  necessary,  but  the  limit 
of  such  discretion  is  the  determination  of  the  necessity  of  the 
bridge,  assuming  the  road  to  be  necessary ;  purposes  of  travel  are 
paramount,  and  the  freeholders  must  exercise  their  discretion  in 
such  a  manner  as  to  make  the  highway  passable  and  safe,  and 
they  cannot,  without  dereliction  of  duty,  refuse  to  provide  a  bridge 
when  required  for  such  use  and  safety  of  the  highway.100  It 
is  also  held  that  where  a  nuisance  is  occasioned  by  the  operation 
of  cars,  owing  to  the  liability  of  the  trolley  wires  to  fall  on  ac- 
count of  their  poor  condition,  and  the  mayor  and  chief  of  police  of 
a  municipality  arrest  the  motorman,  to  abate  such  nuisance,  dam- 
ages may  be  recovered  against  them,  when,  by  removing  the  con- 

150.  Landau  v.  New  York  City,  154.  Commonwealth  v.  Ephrata, 
90  N.  Y.  App.  Div.  50,  85  N.  Y.  2  Pa.  Dist.  R.  349,  10  Lane.  L.  Rev. 
Supp.  616.  51. 

151.  Thompson  v.  Macon,  106  Mo.  155.  Bergen  County  Chosen  Free- 
App.  84,  80  S.  W.  1.  holders  v.  State,  42  N.  J.  L.  263. 

152.  Kolb  v.  Knoxville  City,  111  Judgment  and  order  to  repair 
Tenn.  311,  76  S.  W.  823.  bridges     erroneous     where    chosen 

153.  Merritt  Tp.  v.  Harp,  131  freeholders  convicted.  Bergen  County 
Mich.  174,  9  Det.  L.  N.  302,  91  N.  Chosen  Freeholders  v.  State,  42  N.  J. 
W.  156.  L.  263. 

643 


§  450      Remedies,  Parties,  Defenses  and  Damages. 

t'rollers  or  cutting  the  wires,  the  same  object  could  be  accom- 
plished.156 But  where  male  and  female  persons  congregate  upon 
the  highway  and  conduct  themselves  lasciviously  and  otherwise 
indecently,  the  mayor  and  common  council  who  do  not  prevent 
the  same  are  held  subject  to  an.  indictmtent  as  for  permit- 
ting a  nuisance.157  The  burning,  however,  of  infected  bedding 
and  clothing  by  city  authorities,  to  prevent  the  spread  of  small- 
pox during  an  epidemic,  does  not  constitute  an  indictable  nuisance, 
where  the  safety  of  others  is  provided  for  by  proper  precautions, 
even  though  noxious  smoke  and  vapors  are  produced  to  the  incon- 
venience of  a  few  persons.108 

§  450.  Liability  of  private  corporations. — While  this  subject 
has  been  considered  at  length  under  numerous  sections  throughout 
this  work,  it  may  be  stated  here  that  a  private  corporation  may 
be  held  liable  in  a  civil  action  for  creating  and  maintaining  a 
nuisance.159  So  a  charitable  institution  may  be  liable.160  Again, 
a  railway  and  light  company,  which  is*  a  public  service  corporation 
within  a  constitutional  definition,  is  to  be  considered  in  two  as- 


156.  Mumford         v.  Starmont 

(Mich.),  69  L.  R.  A.  350,  Amer. 
Lawyer,  p.  27,  102  N.  W.  662. 

Liability  of  county  super- 
visors and  officers  controlling  pub- 
lic property  for  pollution  of  stream 
by  sewage  from  almshouse.  See  Le- 
frois  v.  Monroe  County,  162  N.  Y. 
563,  57  N.  E.  185,  50  L.  R.  A.  206, 
revg.  24  N.  Y.  App.  Div.  421,  48  N. 
Y.  Supp.  519. 

When  chief  burgess  and  town 
council  of  borough  indictable.  See 
Commonwealth  v.  Ephrata,  10  Lane. 
L.  Rev.  51,  2  Pa.  Dist.  R.  349. 

Disqualification  of  town 
council  permits  of  equitable  juris- 
diction under  statute  to  abate.  Hill 
v.  McBurney  Oil  &  Fertilizer  Co., 
112  Ga.  788,  38  S.  E.  42,  52  L.  R.  A. 
398. 


157.  Commonwealth  v.  Kinnaird, 
18  Ky.  L.  Rep.  647,  37  S.  W.  840. 
See  §§  262-264,  345,  357,  herein. 

158.  State  v.  Mayor  and  Alder- 
men of  Knoxville,  12  Lea  (80  Tenn.), 
146,  47  Am.  Rep.  331. 

159.  Columbian  Athletic  Club  v. 
State,  143  Ind.  98,  40  N.  E.  914,  28 
L.  R.  A.  727;  Evansville  C.  R.  Co.  v. 
Dick,  9  Ind.  433;  Cameron  v.  Ken- 
yon-Connell  Commercial  Co.,  22 
Mont.  312,  317,  5  Am.  Neg.  Rep.  647, 
10  Am.  &  Eng.  Corp.  Cas.  N.  S.  451, 
44  L.  R.  A.  508,  56  Pac.  358,  74  Am. 
St.  Rep.  602n. 

160.  Deaconess  Home  &  Hospital 
v.  Bontjes,  104  111.  App.  484;  i^err 
v.  Central  Ky.  Lun.  Asy.,  22  Ky.  L. 
Rep.  1722,  61  S.  W.  283. 


044 


Remedies,  Parties,  Defenses  and  Damages. 


450 


pects.  It  has  duties  which  it  owes  to  the  public  and  which  it  must 
perform.  It  has  other  duties  not  of  a  public  nature  which  are  in- 
cidental to  those  of  a  public  character,  in  the  performance  of 
which  it  stands'  upon  the  footing  of  a  private  corporation.  And 
where  the  language  of  a  statutory  authority  to  carry  on  a  certain 
business  is  not  imperative,  but  permissive,  and  no  statutory  author- 
ity is  conferred  to  comfmit  a  nuisance  in  any  way  whatever,  such 
corporation  will  be  liable  for  a  nuisance  caused  by  noise,  vibra- 
tion, smoke  and  escape  of  electricity.161  An  exception  has,  how- 
ever, been  made  where  some  other  remedy  is  provided  by  char- 
ter.162 Corporations  are  also  liable  to  indictment  for  creating 
and  maintaining  a  public  nuisance,163  and  a  foreign  corporation 
has  been  held  subject  thereto.164  So  where  railroad  trains  are 
without  warning,  run  at  excessive  speed  when  crossing  a  highway, 
it  may  constitute  an  indictable  nuisance.165  But  it  is  held  that 
when  a  railroad  corporation  is1  in  a  receiver's  hands  it  cannot  be 
indicted  for  obstructing  a  highway  by  stopping  trains.166  And 
although  a  nuisance  may  be  created  by  a  compress  company  with 
relation  to  cotton  in  its  sheds,  yet  that  does  not  make  a  railroad 


161.  Townsend  v.  Norfolk  Ry.  & 
Light  Co.  (Va.,  1906),  52  S.  E.  970; 
§  153,  Art.  12  of  Const.  (Va.  Code 
1904,  p.  ccxlix). 

162.  Commonwealth  v.  Frankford 
&  B.  Tump.  R.  Co.,  9  Pa.  Co.  Ct. 
103. 

163.  People  v.  Detroit  White  Lead 
Works,  82  Mich.  471,  46  N.  W.  735, 
9  L.  R.  A.  722;  State  v.  White,  96 
Mo.  App.  100,  69  S.  W.  684;  Cam- 
eron v.  Kenyon-Connell  Commercial 
Co.,  22  Mont.  312,  317,  10  Am.  & 
Eng.  Corp.  Cas.  N.  S.  451,  5  Am. 
Neg.  Rep.  647,  74  Am.  St.  Rep.  602-n, 
44  L.  R.  A.  508,  56  Pac.  358;  State 
v.  Western,  etc.,  R.  Co.,  95  N.  C.  602. 
See,  also,  Commonwealth  v.  New  Bed- 
ford Bridge  Co.,  2  Gray  (Mass.), 
339;  Susquehanna,  etc.,  Turnpike  Co. 
v.    People,    15   Wend.    (N.   Y.)    267; 


Louisville  R.  R.  Co.  v.  State,  3  Head 
(Tenn.),   523. 

State  must  show  corporate  ex- 
istence in  information  against  cor- 
poration. Acme  Fertilizer  Co.  v. 
State,  34  Ind.  App.  346,  72  N.  E. 
1037. 

When,  corporation  cannot  be 
prosecuted.  —  Statutory  provi- 
sions. See  Paragon  Paper  Co.  v. 
State,  19  Ind.  App.  314,  49  N.  E.  600. 

164.  State  v.  Paggett,  8  Wash. 
579,  36  Pac.  487. 

165.  Louisville,  Cincinnati  &  Lex- 
ington R.  Co.  v.  Commonwealth,  80 
Ky.  143,  44  Am.  Rep.  468. 

As  to  use  of  highways  by 
railroads  see  §§  242,  et  seq.,  herein. 

166.  State  v.  Vermont  Cent.  R. 
Co.,  30  Vt.  108. 


645 


§  451      Remedies,  Parties,  Defenses  and  Damages. 

corporation,  with  which  it'  exchanges  receipts  for  a  bill  of  lading, 
liable.167  In  Ohio,  under  the  statutes,  any  person  or  corporation 
in  that  State  who  corrupts  and  renders  unwholesome  or  impure, 
any  water  course,  stream  or  water,  to  the  injury  and  prejudice  of 
others1,  may  be  indicted  and  prosecuted  therefor,  in  any  county 
into  which  the  stream  or  water  course  passes  whose  inhabitants 
are  aggrieved  or  injured  thereby ;  although  the  refuse  or  other  un- 
wholesome substance  may  have  been  introduced  into  said  stream 
or  water  course  in  another  county  in  that  State,  and  such  statutes 
are  constitutional  and  within  the  exercise  of  a  legitimate  legislative 
power.168 

§  451.  Same  subject — Opinions  of  text- writers. — The  ques- 
tion of  the  liability  of  private  corporations  in  this  connection 
has  been  the  subject  of  much  discussion.  Mr.  Morawitz  makes 
the  following  distinction :  "There  are,  however,  certain  classes  of 
crimes  which  do  not  depend  upon  the  intention  of  the  offender  at 
all,  and  which  are  not  distinguishable  from  simple  torts,  except  by 
the  fact  that  in  the  one  case  an  individual  sues  for  damages  on 
account  of  a  private  wrong,  and  in  the  other  case  the  State  sues 
for  a  penalty  on  account  of  a  public  wrong.  In  these  cases  the 
crime  consists  of  the  act  alone,  without  regard  to  the  intention  with 
which  it  was  committed ;  and  there  is  no  difficulty  in  attributing 
an  offense  of  this  character  to  a  corporation,  since  it  may  be  com- 
mitted entirely  by  agent.  Accordingly,  it  has  been  held  that  a  cor- 
poration may  be  indicted  for  causing  a  public  nuisance.169  The 
late  Judge  Thompson  says :  "The  liability  of  private  corporations 
for  public  and  private  nuisances  rests  upon  the  same  ground  as 

167.  St.  Louis,  I.  M.  &  S.  R.  Co.  have  been  injured  or  aggrieved  there- 
v.  Commercial  U.  Ins.  Co.,  139  U.  S.  by  "  is  constitutional  and  not  in  con- 
223,  11  Sup.  Ct.  554,  35  L.  Ed.  154.  flict    with    section    7263    of    the    Re- 

168.  American  Strawboard  Co.  v.  vised  Stat.  And  this  is  so  even  if  it 
State,  70  Ohio  St.  140,  71  N.  E.  284.  be  admitted  that  the  statute  changes 

Jurisdiction.    —    Constitution-  the  rule  of  common  law  as  to  juris 

ality  of  statute.     Section  6920  Rev.  diction.        American    Strawboard   Co. 

Stat,   providing  that  certain   offenses  v.   State,   70  Ohio  St.    140,   71   N.   E. 

(nuisances)    "shall  be  construed  and  284. 

held  to  have  been  committed  in  any  169.  Morawitz   on   Private  Corpo 

county     whose     inhabitants     are     or  ration    (Ed.   1882),  §  94. 

646 


Remedies,  Parties,  Defenses  and  Damages.        §  451 

that  of  individuals,  but  with  this  difference:  Corporations  fre- 
quently attempt  to  justify  on  the  ground  that  the  doing  of  the  act 
which  is  charged  to  be  a  nuisance  is  authorized  by  their  charter 
or  governing  statute,  in  which  case  there  are  two  theories :    1.  The 
theory  of  the  ancient  common  law  that  whatever  the  Legislature 
(in  America  within  the  limits  of  its  constitutional  power),  author- 
izes a  corporation  to  do,  is  for  that  reason  lawful,  and,  being  law- 
ful, cannot  be  regarded  as  a  nuisance,  public  or  private,  and  is 
hence  neither  indictable  nor  actionable.     2.  The  other  is,  that  a 
general  legislative  authorization  to  a  corporation,  to  do  a  given  act 
for  its  own  emolument,  although  incidentally  for  the  public  bene- 
fit, is  never  construed  as  a  license  to  do  the  act  without  paying 
damages  to  individuals,  if  individuals  are  damnified  by  the  doing 
of  it;   and   that,   while  the  grant   of  power   to  do  the   act  will 
estop  the  State  from  prosecuting  an  indictment  against  the  cor- 
poration for  a  public  nuisance  consisting  of  the  doing  of  the  act, 
there  is  always  an  implication  or  reservation,  founded  on  the  prin- 
ciples of  justice,  that,  in  case  a  private  individual  is  damnified 
by  the  doing  of  the  act,  the  corporation  will  make  compensation. 
Between  the  limits  of  these  two  doctrines  a  wide  field  is  left  open 
for  speculation  and  casuistry,  and  cases  are  not  wanting  where  the 
same  court,  without  any  wide  interval  of  time,  has  come  to  widely 
opposite  conclusions,  while  professing  to  adhere  to  a  uniform  prin- 
ciple." 170     Mr.    Wharton  says:   "In   some  jurisdictions  in  this 
country,  it  is  true  it  was  once  held  that  a  corporation  cannot  be 
indicted  for  a  nuisance  in  obstructing  highways  or  rivers  by  its 
agents,  the  ground  being  the  now  exploded  distinction  between  mis- 
feasance and  nonfeasance.     But  in  England,  after  a  full  consid- 
eration of  the  authorities,  a  contrary  principle  was  established. 
It  was  ruled  there  that  an  indictment  lay  at  common  law  against 
an  incorporated  railway  company  for  cutting  through  and  obstruct- 
ing a  highway  in  a  manner  not  comformable  to  the  powers  conferred 
on  it  by  act  of  Parliament.     The  case  was  put  on  general  grounds, 
and  the  distinction  which  has  been  attempted  between  nonfeasance 

170.  Thompson's  Comm.  on  the  6359,  6590,  7774,  and  article  on  Cor- 
Law  of  Corp.  §  6284.  See,  also,  id.  porations  by  same  author,  10  "  Cyc." 
§§  4996,  5910,  5911,  6418,  6422-6425,       pp.   1224    (d),  1225,  et  seq. 

647 


§  452      Kemedies,  Parties,  Defenses  and  Damages. 

and  misfeasance  were  overthrown.  Indeed,  since  it  has  been  set- 
tied  against  some  of  the  earlier  authorities  that  trespass  or  case,  tor 
a  private  nuisance,  would  lie  against  a  corporation,  no  good  rea- 
son can  be  assigned  why  the  same  acts,  when  to  the  injury  to  the 
public  at  large,  may  not  equally  be  the  basis  of  criminal  pro- 
ceedings. And  such  is  now  generally  considered  to  be  the  law 
when  the  object  is  the  imposition  of  a  fine  on  the  corporation  es- 
tate, or  the  abatement  of  a  nuisance,  a  corporation  being  justly 
held  to  be  as  indictable  for  a  misfeasance  as  for  a  nonfeasance."  in 
Mr.  Bishop  says :  "  Corporations  can  commit  criminal  nuisance 
the  same  as  individuals,"  172  and,  in  another  section,  he  adds : 
"  The  limits  of  the  liability  to  indictment  depend  chiefly  on  the 
nature  and  duties  of  the  particular  corporation,  and  the  extent  of 
its  powers  in  the  special  matter,  and  though  a  corporation  cannot 
be  hung,  there  is  no  reason  why  it  may  not  be  fined  or  suffer  the 
loss  of  its  franchise  for  the  same  act  which  would  subject  an  in- 
dividual to  the  gallows."  173  Mr.  Cook  says :  "  After  much  dis- 
cussion the  general  rule  is  now  firmly  established  that  corporations 
can  not  make  defense  to  actions  in  tort  by  claiming  that  the  acts 
by  which  the  wrongs  have  been  committed  are  not  within  the 
corporate  powers  conferred  upon  them.  Since  corporations  are 
not  in  themselves  capable  of  an  evil  intent,  they  can  be  indicted 
only   for   such   offenses   as    arise   from   misfeasance — such    as    a 


§  452.  Liability  of  officers  of  corporations. — The  officers'  of 
a  corporation  are  jointly  responsible  for  the  business  of  a  corpora- 
tion, and  where  a  nuisance  is  created  and  maintained,  the  directors 
and  officers  are  the  ones  primarily  responsible,  and,  therefore, 
the  proper  ones  to  be  prosecuted.  Xor  is  it  necessary  to  a  convic- 
tion that  they  should  have  been  actively  engaged  in  work  upon  the 
premises,  the  work  being  carried  on  by  employees.170     So  it  is  the 

1,71.  Wharton's  Crini.  Law.  (10th           174.  Cooke  on  Corp.    (4th  Ed.),  § 

Ed.),  §  91.  15b. 

172.  Bishop's  New  Crim.  Law  175.  People  v.  Detroit  White 
(8th  Ed.),  §  419   (2).  Lead  Works,  82  Mich.  471,  9  L.  R.  A. 

173.  Bishop's     New     Crim.  Law       722,  46  N.  W.  735. 
(8th  Ed.),  §  423. 

'648 


Remedies,  Parties,  Defenses  and  Damages.        §  452 

duty  of  the  directors  of  a  corporation  to  avoid  the  creation  of 
nuisances  by  their  corporation  through  its  employees  acting  within 
the  line  of  their  duties.176  And  the  president  and  general  man- 
ager of  a  corporation  are  personally  liable  for  damages  caused 
to  a  riparian  proprietor  by  the  long  continued  discharge  of  muddy 
water  into  a  stream  from  ore  washers  operated  by  the  company 
with  their  sanction  and  their  knowledge  of  the  damage  caused 
thereby.177  In  this  case  the  court  said :  "  If  the  agent  of  a  cor- 
poration, or  of  an  individual,  commits  a  tort,  the  agent  is  clearly 
liable  for  the  same ;  and  it  matters  not  what  liability  may  attach 
to  the  principal  for  the  tort,  the  agent  must  respond  in  damages  if 
called  upon  to  do  so.  This  principle  is  absolutely,  without  excep- 
tion, founded  upon  the  soundest  legal  analogies  and  the  wisest 
public  policy.  It  is  sanctioned  by  both  reason  and  justice,  and 
commends  itself  to  every  enlightened  conscience.  To  permit  an 
agent  of  a  corporation,  in  carrying  on  its  business,  to  inflict  wrong 
and  injuries  upon  others,  and  then  shield  himself  from  liability 
behind  his  vicarious  character,  would  often  both  sanction  and  en- 
courage the  perpetration  of  flagrant  and  wanton  injuries  by  agents 
of  insolvent  and  irresponsible  corporations.  It  would  serve  to 
stimulate  the  zeal  of  responsible  and  solvent  agents,  of  irresponsi- 
ble and  insolvent  corporations,  in  their  efforts  to  repair  the  shat- 
tered fortunes  of  their  failing  principals'  upon  the  ruins  of  the 
rights  of  others.  To  the  same  effect  is  1  Waterman  on  Corpora- 
tions,178 where  it  is  said :  '  The  directors  of  a  gas  company  were 
held  liable  for  a  nuisance  created  by  the  superintendent  and  en- 
gineer under  a  general  authority  to  manage  the  works,  though 
they  were  personally  ignorant  of  the  particular  plan  adopted,  and, 
though  such  plan  was  a  departure  from  the  original  and  under- 
stood method,  which  the  directors  had  no  reason  to  suppose  had 
been  discontinued.'  "  Again,  the  superintendent  of  the  philan- 
thropic work  of  a  religious  association,  owners  of  a  building  or 
house  used  as  a  night  refuge  for  the  destitute  poor,  who  gives  or- 

176.  Cameron    v.    Kenyon-Connell  177.  Syllabus      in      Nunnelly      v. 

Commercial  Co.,  22  Mont.  312,  5  Am.  Southern  Iron  Co.,  94  Tenn.  397,  28 

Neg.  Rep.   647,  44  L.  R.   A.  508,   10  L.  R.  A.  421,  29  S.  W.  361. 

Am.  &  Eng.  Corp.  Cas.  N.  S.  451,  56  178.  P.  415. 
Pac.  358,  74  Am.  St.  Rep.  602-n. 

649 


§  452      Remedies,  Parties,  Defenses  and  Damages. 

ders  to  the  caretakers  of  such  house  as  to  the  admission  of  desti- 
tute persons  at  night,  may,  in  the  event  of  the  building  being  so 
over-crowded  as  to  be  a  nuisance  with  the  English  Public  Health 
Act,  1891,  be  summoned  as  the  person  by  whose  act,  default  or 
sufferance  the  nuisance  has  arisen.179  So  non-execution  of  the  duty 
of  directors,  which  results  in  the  positive  act  of  the  creation  and 
maintenance  of  a  continuing  nuisance  by  the  corporation,  on  ac- 
count of  which  a  third  person  is  killed,  amounts,  unless  explained, 
to  a  misfeasance  on  their  part,  or,  if  they  have  actual  knowledge 
of  and  authorize  the  nuisance,  to  malfeasance,  and  is  not  merely  a 
non-feasance  for  which  the  liability  can  be  limited  to  the  corpo- 
rations only.180  But,  although  where  one  participates  in  the  ob- 
struction of  a  public  road,  it  is  immaterial  whether  or  not  he 
knew  that  the  road  was  legally  established,  still  where  there  is 
no  proof  whatever  of  any  personal  direction,  management  or  par- 
ticipation, in  the  acts  charged  other  than  what  may  be  inferred 
from  the  office  of  one  who  is  president  of  the  corporation,  and  he 
has  no  personal  knowledge  of  or  part  in  the  obstruction  of  the 
public  highway  by  the  corporation,  he  is  not  liable  under  a  statu- 
tory provision  for  wilfully  obstructing  the  road.181  So  a  director 
who  knows  nothing  of  a  nuisance  and  who  could  not,  by  exercising 
ordinary  diligence  in  control,  have  known  of  it,  or,  generally 
speaking,  one  who  considering  the  situation  and  all  the  attendant 
circumstances,  has  performed  his  duty  of  taking  care,  is  not  per- 
sonally liable  for  the  nuisance  and  cannot  be  held  so.182  Again, 
"  though  a  corporation  is  indictable  for  a  particular  wrong,  still 
the  individual  members  and  officers  who  participate  in  it  may  be 
also  liable  for  the  same  act.  But  they  are  not  so  liable  in  all  cases 
in  which  the  corporation  is."183  And  the  incorporators  of  a  rail- 
road company  and  stockholders  therein  are  not  individually  liable 

179.  Reg.  v.  Mead,  64  L.  J.  M.  C.  100,  69  S.  W.  684.  Under  Rev.  Stat. 
N.  S.  169.  1899,  §  9454. 

180.  Cameron  v.  Kenyon-Connell  182.  Cameron  v.  Kenyon-Connell 
Commercial  Co.,  22  Mont.  312,  56  Commercial  Co.,  22  Mont.  312,  44  L. 
Pac.  358,  5  Am.  Neg.  Rep.  647,  44  L.  R.  A.  508,  56  Pac.  358,  10  Am.  &  Eng. 
R.  A.  508,  10  Am.  &  Eng.  Corp.  Cas.  Corp.  Cas.  N.  S.  451.  5  Am.  Neg. 
N.  S.  451,  74  Am.  St.  Rep.  602-n.  Rep.  647,  74  Am.  St.  Rep.  602-n. 

181.  State  v.  White,  96  Mo.  App.  183.  Bishop's     New     Crim.     Law 

(8th  Ed.),  §  424. 

650 


Remedies,  Parties,  Defenses  and  Damages.        §  453 

for  the  maintenance  of  a  continuous  nuisance  by  the  corporation 
upon  the  premises  of  another.  It  is  a  good  defense  that  the  tor- 
tious act  was  committed  by  another.184 

§  453.  Liability  of  owner  generally — Instances. — It  is  the 
common  law  duty  of  the  owner  of  a  vacant  piece  of  land  in  a  city 
to  prevent  it  from  being  so  used  as  to  become  and  continue  a 
public  nuisance.1S5  And  an  abutting  owner  may  be  liable  for 
maintaining  a  defective  fence  where  a  physical  injury  is  occa- 
sioned by  such  nuisance.186  But  he  is  held  not  liable  for  in- 
juries to  animals  occasioned  by  a  fence  not  a  nuisance  per  se.m 
And  the  fact  that  he  is  under  no  obligation  to  fence  may 
prevent  a  recovery  for  loss  of  his  neighbor's  cattle  occasioned 
by  eating  leaves  of  a  yew  tree  wholly  upon  such  owner's 
land.1S8  So  an  owner  may  under  a  statute  be  liable  for  the  cost 
of  removing  filth  or  its  sources,  even  though  the  property  is 
occupied  by  a  tenant.189  And  in  a  similar  case  an  agent  in 
control  has  been  held  an  owner  within  the  terms  of  a  city  char- 
ter.190 Again,  where  the  nuisance  consists  of  a  cow  stable  the 
owner  should  be  prosecuted  therefor,  instead  of  for  non-compli- 
ance with  an  ordinance  of  the  board  of  health  unlawfully  restrict- 
ing the  method  of  construction  of  floors.191  And  the  owner  of  a 
tower,  which  constitutes  a  private  nuisance  by  reason  of  accumula- 
tions thereon  of  ice  and  snow  at  certain  seasons,  and  the  con- 
sequent danger  to  property  and  life,  is  held  liable  therefor.192 
So  one's  claimed  title  may  constitute  such  ownership  or  con- 
trol  that  he  will  be  a   proper   party   defendant.193     And    it   is 

184.  Dieter  v.  Estill,  95  Ga.  370,  189.  Bangor  v.  Rowe,  57  Me.  436. 
22  S.  E.  622.  190.  St.   Paul  v.  Clark,   84   Minn. 

185.  Attorney-Gen'l  v.   Tod  Heat-       138,  86  N.  W.  993. 

ley,  66  L.  J.  Ch.  N.  S.  275,  76  Law  191'.  State,     Morford     v.     Asbury 

T.  Rep.  174   (1897),  1  Ch.  560,  rev'g  Park  Board  of  Health,   61   N.  J.  L. 

75  Law  T.  Rep.  452.  386,  39  Atl.  706. 

186.  Harrold  v.  Watney  (C.  A.),  192.  Davis  v.  Niagara  Falls 
(1898)  2  Q.  B.  320,  78  Law  T.  Rep.  Tower  Co.,  49  N.  Y.  Supp.  554,  25 
788,  67  L.  J.  Q.  B.  N.  S.  771.  N.  Y.  App.  Div.  321. 

187.  Presnall  v.  Raley  (Tex.  Civ.  193.  Eastman  v.  St.  Anthony 
App.),  27  S.  W.  200.  Falls  Water  Power  Co.,  12  Minn.  137. 

188.  Ponting    v.    Noakes     (1894), 
2  Q.  B.  281. 

C51 


§  454      Remedies,  Parties,  Defenses  axd  Damages. 

held  that  any  one  of  the  joint  owners  of  adjacent  lands  may 
be  sued.194  But  it  is  decided  that  it  is  not  necessary  in  an 
equitable  suit  to  join  the  owner  in  fee,  where  the  claimed  nuisance 
is  movable  property  on  his  land,  but  in  the  possession  of  a  tenant.195 
And  where  grantors  of  lots  have  sold  them  with  an  easement  in 
sewers  in  streets  laid  out  by  them,  but  over  which  they  retained  no 
control,  they  are  not  liable  for  a  nuisance  created  by  their  grantees 
in  connecting  their  premises  with  such  sewers.196  So  a  grantor, 
under  covenant  to  erect  no  nuisance  on  adjoining  land  is  not  liable 
where  the  covenant  is  broken  by  his  subsequent  grantee  of  the  ser- 
vient tenement,  nor  is  his  grantee  liable.197 

§  454.  Liability  of  erector  of  nuisance  and  subsequent  hold- 
ers by  purchase  or  descent — Continuance  of  nuisance. — If  one 
erects  a  nuisance,  even  though  he  is  not  owner  of  the  freehold  or 
any  part  of  it,  he  is  held  liable  notwithstanding  he  subsequently 
disposes  of  his  interest  in  the  erection  constituting  the  nuisance, 
and  the  right  of  action  for  damages  against  him  is  not  thereby  de- 
feated.198 So  a  party  erecting  a  mill-dam  on  his  own  land,  which 
causes  an  overflow  on  the  land  of  another,  is  not  exonerated,  by 
conveying  the  land  and  dam  to  a  third  person,  from  responsibility 
for  damages  arising  from  such  flowage,  after  such  conveyance,  and 
he  who  erects  a  nuisance  does  not  by  conveying  to  another  transfer 
the  liability  for  the  erection  to  the  grantee.199  And  in  another  case 
it  is  declared  that  it  is  the  rule  that  one  who  erects  a  nuisance  on 
land  is  liable  for  the  continuance  of  it  as  well  as  for  the  original 
wrong,  though  he  has  demised  the  premises  to  another  with  the 
nuisance  upon  it  and  reserved  a  rent.200  So  where  the  plaintiff 
transfers  his  title  to  property  damaged  by  a  nuisance  the  action 

194.  Sanders  V.  Riedinger,  43  N.  N.  Y.  120,  35  N.  Y.  St.  R.  206,  26  N. 
Y.  Supp.  127,  19  Misc.  289.  E.  275. 

195.  Olmstead  v.  Rich,  6  N.  Y.  198.  Dorman  v.  Ames,  12  Minn. 
Supp.  826,  53  Hun,  638.                               451. 

196.  Moore  v.  Langdon,  2  Mackey  199.  Eastman  v.  Amoskeag  Mfg. 
(D.  C),  127,  47  Am.  Rep.  202.  Co.,  44  N.  H.  143. 

197.  Clark  v.  Devoe,  48  Hun  (N.  200.  Fish  v.  Dodge,  4  Denio  (N. 
Y.),  512,  16  N.  Y.  St.  R.  264,  1  N.  Y.  Y.),  311,  317,  47  Am.  Dec.  254,  per 
Supp.    132,  28  W.   D.   547,   aff'd   124  Bronson,  Ch.  J. 

652 


Remedies,  Parties,  Defeases  axd  Damages.        §  454 

does  not  abate.201  In  New  Jersey  if  the  erector  of  a  nuisance  cove- 
nants in  his  deed  for  quiet  enjoyment  and  the  right  to  maintain  the 
nuisance  he  affirms  its  continuance  and  is  liable  therefor.202  So 
under  a  New  York  decision  if  one  erect  a  nuisance  on  his  own 
land,  to  the  injury  of  the  land  of  another,  and  then  conveys  the 
premises  to  a  purchaser  with  warranty,  he  nevertheless  remains 
liable,  in  an  action  on  the  case,  for  the  damages  occasioned  by  the 
continuance  of  the  nuisance  subsequent  to  the  conveyance.  And 
this  rule  applies  to  one  who  has  erected  the  nuisance  and  then  con- 
veyed and  surrendered  the  possession  of  the  premises  to  another 
with  covenants  of  warranty  for  quiet  enjoyment;  and  the  court 
considered  these  covenants  as  strong  and  clear  affirmance  of 
the  nuisance  in  the  possession  and  enjoyment  of  his  grantee.203 
This  case  examines  and  limits  that  of  Blunt  v.  Aikin,204  which 
holds  that  the  action  must  be  against  the  one  in  possession.  It  ap- 
peared that  the  plaintiff  had  no  interest  in  the  premises  injured 
by  the  nuisance  until  some  time  after  defendant  had  been  out  of 
the  possession  of  the  nuisance  itself;  but  the  court  declared  that 
if  "  the  receipt  of  the  rent  is  a  sufficient  affirmation  of  the  nuisance 
and  participation  in  its  continuance  to  make  him  liable  to  anyone, 
he  might  be  liable  to  the  person  injured,  either  by  the  original 
erection  of  the  nuisance  or  by  the  continuance  of  it."  Both  the 
Blunt  case  and  the  one  in  which  it  is  limited  are  quoted  or  cited  to 
the  points  that  a  party  who  has  erected  a  nuisance  will  sometimes 
be  answerable  for  its  continuance  after  he  has  parted  with  the 
possession  of  the  land ;  but  that  it  is  only  so  where  he  continues  to 
derive  a  benefit  from  the  nuisance,  as  by  demising  the  premises 
and  receiving  rent,  or  where  he  conveys  the  property  with  cove- 
nants for  the  continuance  of  the  nuisance.205  Again,  defendant 
cannot  be  held  liable  for  damages  for  the  operation  by  its  predeces- 
sors in  interest  of  works  causing  the  alleged  nuisance ;  that  is,  de- 

201.  Standard  Bag  &  Paper  Co.  v.  205.  Covert    v.    Cranford,    141    N. 
Cleveland,  25  Ohio  Cir.  Ct.  R.  380.  Y.  521,  526,  36  N.  E.  597,  57  N.  Y. 

202.  East    Jersey    Water    Co.    v.  St.  R.  720,  rev'g  50  N.  Y.  St.  R.  516, 
Bigelow,  60  N.  J.  L.  201,  38  Atl.  631.  21    N.   Y.    Supp.   219;   Mayor   of  Al- 

203.  Waggoner     v.      Jermaine,     3  bany  v.  Cunliff,  2  N.  Y.  165,  174,  per 
Denio   (N.  Y.),  306.  Bronson,    J.;      Hanse    v.    Cowing,    1 

204.  15  Wend.   (N.  Y.),  522.  Lans.   (N.  Y.)    288,  293. 

653 


§  455      Remedies,  Parties,  Defenses  and  Damages. 

fendant  will  not  be  liable  prior  to  the  day  when  he  became 
owner.206  And  there  must  be  some  act  showing  some  relation  to  or 
connection  with  a  public  nuisance  by  owners  by  descent  to  render 
them  liable.207 

§  455.  Same  subject — Notice  or  request  to  abate — Creator  or 
maintainer  of  nuisance. — It  is  not  necessary  that  notice  be  given 
to  the  erector  or  creator  of  a  nuisance  or  that  he  be  requested  to 
abate  the  same  before  action  is  brought  :208  although  it  is  held  that, 
except  in  cases  of  nuisances  per  se,  a  nuisance  cannot  be  summarily 
abated  by  a  municipality  except  upon  notice  and  an  opportunity 
to  be  heard.209  And  where  a  statute  and  ordinance  requires  notice 
it  is  a  prerequisite,210    But  where  the  plaintiff  purchased  his  mill 


206.  Watson  v.  Colusa-Parrot 
Min.  &  Smelting  Co.  (Mont.,  1905), 
79  Pac.  14.  See  Meyer  v.  Harris,  61 
N.  J.  L.  83,  38  Atl.  690. 

207.  Bruce  v.  State,  87  Ind.  450. 

208.  Middlebrooks  v.  Mayne,  96 
Ga.  449,  23  S.  E.  398;  Ray  v.  Sellers, 
1  Duv.  (62  Ky.)  254;  Dunsbach  v. 
Hollister,  49  Hun,  352,  17  K  Y.  St. 
R.  461,  2  N.  Y.  Supp.  94,  aff'd  132 
N.  Y.  602,  44  N.  Y.  St.  R.  934,  30  N. 
E.  1152.  See  Wabash  R.  Co.  v.  San- 
ders, 58  111.  App.  213. 

209.  Western  &  A.  R.  Co.  v.  At- 
lanta, 113  Ga.  537,  38  S.  E.  996,  54 
L.  R.  A.  294. 

That  no  notice  necessary 
where  city  ordinance  violated,  see 
Miller  v.  Sergeant  (Ind.  App.),  37 
N.  E.  418. 

210.  Shannon  v.  Omaha  (Neb.), 
100  N.  W.  298. 

When  sufficient  service  of 
notice  hy  health  commissioner 
not  shown  by  return.  See  St.  Louis 
v.  Flynn,  128  Mo.  413,  31  S.  W.  17. 

Constable  who  is  member  of 
board  of  health  may  serve  notice 
or   order   to  remove  nuisance.     Com- 


monwealth v.  Alden,  143  Mass.  113, 
3  N.  E.  211,  9  N.  E.  15. 

Rent  collector  is  not  agent  of 
premises    on    •whom    notice    may 

properly  be  served,  under  charter,  c. 
10,  §  10,  of  St.  Paul  city,  and  no  pre- 
sumption exists  that  he  has  au- 
thority to  abate  nuisance.  St.  Paul 
City  v.  Clark,  84  Minn.  138,  86  N. 
W.    1093. 

Under  English  Public  Health 
(London)  Act,  1,891,  service  of 
notice  is  not  condition  precedent  to 
jurisdiction  of  petty  sessional  court, 
under  §  21,  as  to  offensive  trades,  as 
service  of  such  notice  by  the  sanitary 
authority,  to  abate  nuisance  liable 
to  be  dealt  with  summarily  has  refer- 
ence only  to  nuisances  specified  under 
§  2  of  said  Act.  Bird  v.  St.  Mary 
Abbotts,  64  L.  J.  M.  C.  N.  S.  215 
(1895),  1  Q.  B.  912. 

When  notice  of  action  or  suit 
condition  precedent  to  jurisdic- 
tion. See  Danner  v.  Kotz,  74  Iowa, 
389,  37  N.  W.  969;  Hughes  v.  Ecker- 
son,  55  Iowa,  641,  8  N.  W.  484,  Mil- 
ler's Code,  §  3391;  Bemis  v.  Clark, 
11  Pick.   (Mass)    452. 


054: 


Remedies,  Parties,  Defenses  and  Damages. 


456 


after  the  erection  of  the  defendant's  dam,  it  is  held  that  he  pur- 
chased the  property  with  the  inconvenience,  and  that  before  he 
could  bring  suit  therefor,  he  was  bound  to  give  notice  to  the  de- 
fendant of  the  injury  complained  of;  and  evidence  that  the  plain- 
tiff, before  suit,  told  the  defendant  to  keep  the  water  from  his  dam 
out  of  the  plaintiff's  field,  and  that  defendant  promised  to  do  so,  is 
not  legally  sufficient  for  the  purpose  of  proving  the  notice  requi- 
site for  such  suit.211  The  vendee  of  land,  however,  after  a  special 
request  to  remove  a  nuisance,  which  had  been  erected  before  he 
purchased,  may  maintain  an  action  for  continuing  it.212 

§  456.  Notice  or  request  to  abate,  continued — Grantee,  etc., 
of  erector  of  nuisance. — A  different  rule  from  that  which  governs 
notice  to  an  erector  of  a  nuisance  prevails,  however,  as  to  a  subse- 
quent holder  by  purchase  or  descent,  and  where  such  party  did  not 
create  an  existing  nuisance  or  the  source  thereof,  but  it  was  created 
prior  to  the  time  he  acquired  his  title  or  interest,  notice,  or  a  re- 
quest or  demand  to  reform,  abate  or  remove  it,  must  be  given  him, 
and  it  is  a  prerequisite  or  condition  precedent  to  maintaining  an 
action  against  him  to  abate,  or  for  damages.213    So  in  New  York  a 


211.  Pickett  v.  Condon,  18  Md. 
433.  See,  also,  Eastman  v.  Amos- 
keag  Mfg.  Co.,  44  N.  H.  143.  Ex- 
amine Castle  v.  Smith  (Cal.),  36 
Pac.  859. 

212.  Loftin  v.  M'Lemore,  1  Stew. 
(Ala.),  133. 

213.  Philadelphia  &  P.   R.  Co.   v. 
Smith,  12  C.  C.  A.  384,  64  Fed.  679, 
27   L.  R.  A.   131,  28  U.  S.   App.   134 
(lessee)  ;      Central  Trust  Co.  v.  Wa- 
bash, St.  L.  &  P.  R.  Co.,  57  Fed.  441 ; 
Commelin   v.    Coxe,    30   Ala.   318,   68 
Am.     Dec.      120;        Middlebrooks     v. 
Mayne,    96    Ga.    449,    23    S.   E.    398 
Wegner  v.   Meyer,   95    111.    App.   68 
London  v.  Mullins,  52  111.  App.  410 
Rouse  v.  Chicago  &  E.  I.  R.   Co.,  42 
111.  App.  421;   Groff  v.  Ankenbrandt, 
19  111.  App.  148,  aff'd  124  111.  51,  7 


Am.  St.  Rep.  342,  15  N.  E.  40;  Fenter 
v.  Toledo  St.  L.  &  K.  C.  R.  Co.,  29 
111.  App.  250;  Staples  v.  Dickson,  88 
Me.  362,  34  Atl.  168;  Sloggy  v.  Dil- 
worth,  38  Minn.  179,  8  Am.  St.  Rep. 
656,  36  N.  W.  451;  Bartlett  v.  Simon, 
24  Minn.  448;  Pinney  v.  Berry,  61 
Mo.  359;  Snow  v.  Cowles,  2  Fost. 
(N.  H.)  296;  Carleton  v.  Redington, 
1  Fost.  (N.  H.)  291;  Beavers  v. 
Trimmer,  25  N.  J.  L.  97;  Pierson  v. 
Glean,  14  N.  J.  L.  36,  25  Am.  Dec. 
497;  Slight  v.  Gutzlaff,  35  Wis.  675, 
17  Am.   Rep.   476. 

The  rule  is  well  established 
that  a  person  not  the  original  creator 
of  a  nuisance  is  entitled  to  notice  that 
it  is  a  nuisance,  and  request  must  be 
made  that  it  may  be  abated  before  an 
action    will    lie    for     that    purpose. 


655 


456      Remedies,  Parties,  Defenses  and  Damages. 


grantee  or  devisee  of  premises  upon  which  there  is  a  nuisance  at 
the  time  the  title  passes  is  not  responsible  therefor  until  he  has  had 
notice  thereof.214  But  it  is  also  held  in  that  State  that  it  is  not 
necessary  to  prove  a  request  to  abate  the  nuisance  as  such  request 
is  unnecessary.215  The  rule  that  knowledge  or  notice  of  and  re- 
quest to  abate  a  nuisance  is  necessary  applies  to  a  borough  succeed- 


Grigsby  v.  Clear  Lake  Water  Co.,  40 
Cal.  346,  407. 

Demand  to  abate  not  neces- 
sary to  action  for  damages  under  § 
3483  Civ.  Code,  even  where  nuisance 
created  by  predecessor  in  interest. 
Coats  v.  Atchison,  Topeka  &  Santa  Fe 
Ry.  Co.    (Cal.),  82  Pac.  640. 

Alienee  is  responsible  for  con- 
tinuance of  nuisance  either  to  a  party 
originally  affected  by  it  or  another 
deriving  title  from  him,  but  he  does 
not  become  responsible  unless  after 
reasonable  notice,  request  or  remon- 
strances, he  refuses  to  reform  or 
abate  the  nuisance.  West  &  Brother 
v.  Louisville,  Cincinnati  &  Lexington 
R.   Co.,   8   Bush    (Ky.)    404. 

Where  a  lessee  or  grantee  con- 
tinues a  nuisance  of  a  nature 
not  essentially  unlawful,  erected 
by  his  lessor  or  grantor,  he  is  liable 
to  an  action  for  it  only  after  notice 
to  reform  or  abate  it.  The  rule  is 
very  generally  recognized  in  this 
country.  Slight  v.  Gutzlaff,  35  Wis. 
675,  17  Am.  Rep.  476. 

Grantee  of  erecter  of  nui- 
sance bound  by  notice  to  latter. 
See  Caldwell  v.  Gale.  11  Minn.  77. 

Lessee  who  has  sublet  must 
have  notice  or  knowledge  or  should 
have  known  of  existence  of  nuisance. 
Timlin  v.  Standard  Oil  Co.,  126  N.  Y. 
514,  37  N.  Y.  St.  R.  906,  27  N.  E. 
786,  rev'g  54  Hun,  44,  26  N.  Y.  St. 
R.  42,  7  N.  Y.  Supp.  158. 


214.  Ahem  v.  Steele,  115  N.  Y. 
203,  26  N.  Y.  St.  R.  295,  22  N.  E. 
193,  40  Alb.  L.  J.  424,  12  Am.  St. 
Rep.  778,  5  L.  R.  A.  449,  rev'g  48 
Hun,  517,  16  N.  Y.  St.  R.  24,  1  N. 
Y.  Supp.  259;  Timlin  v.  Standard 
Oil  Co.,  126  N.  Y.  514,  37  N.  Y.  St. 
R.  906,  27  N.  E.  786,  rev'g  54  Hun, 
44,  26  N.  Y.  St.  R.  42,  7  N.  Y.  Supp. 
158;  Schreiber  v.  Driving  Club,  39 
JN.  Y.  Supp.  348,  17  Misc.  131,  rev'g 
15  Misc.  632,  72  N.  Y.  St.  R.  701,  37 
N.  Y.  Supp.  348;  Orvis  v.  Elmira,  C. 
&  N.  R.  Co.,  17  N.  Y.  App.  Div.  187, 
45  N.  Y.  Supp.  367. 

215.  In  order  to  maintain  an  ac- 
tion for  damages  resulting  from  a 
nuisance  upon  defendant's  land, 
where  such  nuisance  was  erected  by 
a  previous  owner  before  conveyance 
to  defendant,  it  is  necessary  to  show 
that  before  the  commencement  of  the 
action  he  had  notice  or  knowledge  of 
the  existence  of  the  nuisance,  but  it 
is  not  necessary  to  prove  a  request 
to  abate  it.  Conhocton  Stone  Road 
v.  Buffalo,  N.  Y.  &  Erie  Ry.  Co.,  51 
N.  Y.  573,  rev'g  52  Barb.  390,  cited 
in  Ahem  v.  Steele,  115  N.  Y.  203, 
224,  26  N.  Y.  St.  R.  295.  See  Ray 
v.  Sellers,  1  Duv.  (Ky.)  254;  Pinney 
v.  Berry,  61  Mo.  359;  Morris  Canal 
&  Bkg.  Co.  v.  Ryerson,  27  N.  J.  L. 
457;  Haggerty  v.  Thompson,  45  Hun, 
398,  10  N.  Y.  St.  R.  137. 


656 


Remedies,  Parties,  Defenses  and  Damages.        §  457 

ing  a  town  in  the  ownership  and  control  of  highways  the  same  as  to 
any  other  party  who  succeeds  to  ownership  of  premises  which  con- 
tain a  nuisance.216  So  a  purchaser  of  a  dam  may  lawfully  use  it  as 
it  was  when  purchased  and  had  been  customarily  used  by  his 
grantor  until  he  is  notified  that  such  use  is  an  encroachment  upon 
the  rights  of  others.217  And  where  a  bridge  is  not  necessarily  a 
nuisance  a  purchaser  is  entitled  to  notice  of  its  defective  character, 
it  being  erected  at  the  time  of  purchase,  to  render  him  liable  to 
damages  to  a  landowner  injured  by  overflow  of  water.218  Again, 
where  defendants  have  taken  title  subject  to  a  valid  outstanding 
lease  which  contaned  no  covenant  binding  the  landlord  to  repair, 
they  are  not  responsible  for  a  nuisance  of  which  they  had  no  notice, 
created  because  of  failure  to  repair  during  the  existence  of  the 
precedent  estate.219  But  where  a  highway  or  navigable  waters  are 
obstructed  the  rule  is  held  not  to  apply  as  against  the  injured 
party.220 

$  457.  Notice  or  request  to  abate, continued. —  Although  a  lessee 
with  actual  notice,  or  other  person  not  the  creator  of  a  nuisance, 
may  be  liable  if  he  has  knowledge  of  its  existence,  and  continues 
it,222  still  it  is  also  held  that  knowledge  of  the  existence  of  a  nuis- 
ance is  not  equivalent  to  a  request  to  abate.223     And  one's  knowl- 

216.  Morse  v.  Fair  Haven  East,  See  Crommelin  v.  Coxe,  30  Ala.  318, 
48  Conn.  220,  223.  41  Am.  Dec.  744;  Willetts  v.  Chicago 

217.  Noyes  v.  Stillman,  24  Conn.  B.  &  K.  C.  R.  Co.,  88  Iowa  281,  55 
15.  See,  also,  Oecum  Co.  v.  Spragus  N.  W.  313,  21  L.  R.  A.  608;  Pinney 
Mfg.  Co.,  34  Conn.  529.  v.    Berry,    61    Mo,    359;     Conhocton 

218.  Peoria  &  Pekin  Union  Ry.  Stone  Road  v.  Buffalo  N.  Y.  &  Erie 
Co.  v.  Barton,  38  111.  App.  469.  Ry.  Co.,  51  N.  Y.  573,   10  Am.  Rep. 

219.  Ahem    v.    Steele,    115    N.   Y.  646,  rev'g  52  Barb.  390. 

203,  26  N.  Y.   St.   R.   295,  22   N.   E.  Not  with  standing     the     prede- 

193,  5  L.  R.  A.  449,  40  Alb.  L.  J.  424,  cessor  in  an  easement  or  estate 

12   Am.  St.   Rep.   778,  rev'g  48  Hun,  creates  a  nuisance,  the  successor,  if 

517,    16   N.   Y.    St.    R.    24,    1    N.    Y.  he  has  knowledge  of  it,  will  be  liable 

Supp.  259.  for    a    continuation    thereof.      Hulett 

220.  Arpin  v.  Bowman,  83  Wis.  v.  Missouri,  Kansas,  &  Tex.  Ry.  Co., 
54,  53  N.  W.  151.  80  Mo.  App.  87,  90,  2  Mo.  App.  Repr. 

221.  Missouri   P.  R.   Co.   v.   Web-  527. 

ster,  3  Kan.  App.  106,  42  Pac.  845.  223.  West    &    Brother    v.    Louis- 

222.  Missouri  P.  R.  Co.  v.  Web-  ville,  Cincinnati  &  Lexington  R.  Co., 
ster,  3  Kan.  App.    106,  42  Pac.  845.      8  Bush  (Ky.)   404. 

657 


§   157      Remedies,  Parties,  Defenses  and  Damages. 

edge  must  be  of  such  a  character  as  to  charge  him  with  notice  that 
a  nuisance  exists.224  But  the  acts  of  such  subsequent  holder  of  the 
title  or  interest  in  relation  to  the  nuisance,  may  preclude  the  ne- 
cessity of  a  notice,  as  where  he  changes  the  nature  or  structure  of 
the  nuisance  so  as  to  increase  it  f2°  or  where  he  created,226  or  aided 
in  creating  it  ;227  or  actively  continues,  uses  or  maintains  it,228  after 
notice  or  demand.229  And  this  rule  applies  to  a  contractor  who 
fails  to  make  proper  and  reasonable  efforts  to  reform  or  abate  the 
nuisance,  although  he  would  be  entitled  to  notice  where  the  charac- 
ter of  the  work  is  not  in  itself  such  that  he,  as  a  prudent  man, 
would  be  led  to  believe  would  create  a  nuisance.230  Nor  is 
notice  necessary  where  the  character  of  the  nuisance  is  such,231 
coupled  with  the  length  of  time  the  party  in  possession  has  held  his 
interest,  as  to  have  enabled  him  to  have  ascertained  its  existence.232 
So  where  the  purchaser  continues  the  nuisance,  such  as  a  defective 
cesspool  and  closet,  a  request  to  abate  is  not  necessary,  especially 
where  there  is  no  evidence  of  the  existence  of  the  nuisance  prior 
to  the  passing  of  title.233 


224.  Schreiber  v.  Driving  Club, 
39  N.  Y.  Supp.  348,  17  Misc.  131, 
rev'g  72  N.  Y.  St.  Ry.  701,  37  N.  Y. 
Supp.  348.  See  Nichols  v.  Boston, 
98  Mass.  39,  93  Am.  Dec.  132. 

225.  Middlebrooks  v.  Mayne,  96 
Ga.  449,  23  S.  E.  398;  Fenter  v. 
Toledo,  St.  L.  &  K.  C.  R.  Co.,  29  111. 
App.  250;  Staples  v.  Dickson,  88  Me. 
362,   34   Atl.    168. 

226.  City  of  Valparaiso  v.  Bo- 
zarth,  153  Ind.  536,  55  N.  E.  439. 

227.  Steinke  v.  Bentley,  6  Ind. 
App.   663,   34  N.  E.  97. 

228.  Whiteneck  v.  Philadelphia 
&  R.  R.  Co.,  57  Fed.  901.  See  Drake 
v.  Chicago,  R.  I.  &  P.  R.  Co.,  63  Iowa, 
302,  50  Am.  Rep.  746,  19  N.  W.  215; 
Pillsbury  v.  Moore,  44  Me.  154,  69 
Am.  Dec.  91;  Grogan  v.  Broadway 
Foundry  Co.,  87  Mo.  321;  Hulett  v. 
Missouri  K.  &  T.  R.  Co.,  80  Mo.  App. 
87,  2  Mo.  App.  Repr.  527;  Meyer  v. 


Harris,  61  N.  J.  L.  83,  38  Atl.  690; 
Brown  v.  Cayuga  &  S.  R.  R.  Co.,  12 
N.  Y.  486;  Hubbard  v.  Russell,  24 
Barb.   (N.  Y.)   404. 

229.  Ferman  v.  Lombard  Invest. 
Co.,  56  Minn.  166,  57  N.  W.  309; 
George  v.  Wabash  R.  Co.,  40  Mo. 
App.  433;  Townes  v.  Augusta,  52  S. 
C.  396,  29  S.  E.  851;  Brown  v. 
Cayuga  &  S.  R.  Co.,  12  N.  Y.  486; 
Chandler  Electric  Co.  v.  Fuller,  21 
Can.  S.  C.  337. 

230.  James  v.  McMinimy,  14  Ky. 
L.  Rep.   486,  20  S.   W.   435. 

231.  Irvine  v.  Wood,  51  N.  Y. 
224,  10  Am.  Rep.  603. 

232.  Timlin  v.  Standard  Oil  Co., 
126  N.  Y.  514,  37  N.  Y.  St.  R.  906, 
27  N.  E.  786,  rev'g  54  Hun,  44,  26 
N.  Y.  St.  R.  42,  7  N.  Y.   Supp.   158. 

233.  Finkelstein  v.  Huner,  179  1ST. 
Y.  548,  71  N.  E.  1130,  aff'g  77  N. 
J.  App.  Div.  424,  79  N.  Y.  Supp.  334. 


G58 


Remedies,  Parties,  Defenses  axd  Damages.        §  458 

§  458.  Same  subject. — Merely  making'  repairs  upon  the  erec- 
tion, which  do  not  make  it  more  of  a  nuisance,  does  not  preclude 
the  necessity  of  giving  notice.234  Xor,  it  is  held,  does  the  opera- 
tion of  a  lessee  railroad  over  an  embankment,  which  obstructs  the 
channel  of  a  watercourse,  render  it  liable  where  it  has  no  knowl- 
edge that  it  is  a  nuisance.235  And  although  it  is  held  that  there 
must  be  a  notice  in  unequivocal  terms,236  yet  the  form  of  the  notice 
is  immaterial,237  provided  the  alienee  or  grantee  be  apprized  of  the 
existence  of  the  nuisance,  the  reasons  or  grounds  for  the  alleged 
injury,  and  the  desire  that  it  be  reformed,  abated  or  removed. 
And  a  mere  demand  for  the  removal,  actually  and  properly 
brought  to  such  party's  knowledge,  or  facts  showing  that  actual 
information  was  received  by  him  may  be  the  equivalent  of  a 
notice  to  the  extent  that  further  notice  is  unnecessary.238  So  it  is 
held  sufficient  to  notify  the  officers  of  a  lessee  company.239  Again, 
it  is  held  that  although  the  general  rule  is  that  one  who  purchases 
a  nuisance  or  that  which  contributes  thereto  is  not  liable  for  dam- 
ages for  its  continuance,  without  allegation  and  proof  of  notice 
to  him  of  the  existence  of  the  nuisance  and  of  the  damage  ac- 
cruing therefrom ;  nevertheless  this  rule  does  not  apply  where  the 
code  provides  that  every  successive  owner  of  property,  who  neglects 
to  abate  a  continuing  nuisance  upon,  or,  in  the  use  of,  such  prop- 
erty, created  by  a  former  owner,  is  liable  therefor  in  the  same 
manner  as  the  one  who  first  created  it.240  The  right  of  a  purchaser 
of  a  nuisance  to  a  notice  may,  however,  be  waived.241 

234.  Castle  v.  Smith  (Cal.),  36  Michigan  C.  R.  Co.,  96  Mich.  498,  53 
Pac.  859.  See  Philadelphia  &  R.  R.  N.  W.  989,  48  Alb.  L.  J.  268,  21  L. 
Co.  v.  Smith,  64  Fed.  679,  12  C.  R.  A.  729,  35  Am.  St.  Rep.  621; 
C.  A.  384,  28  U.  S.  App.  134,  27  L.  Snow  v.  Cowles,  6  Fost.  (N.  H.)  275. 
R.   A.    131.  239.  Central  R.  R.  v.  English,  73 

235.  Missouri    P.   R.    Co.    v.   Web-  Ga.   366. 

ster,  3  Kan.  App.  106,  42  Pac.  845.  240.  Watson     v.     Colusa     Parrot 

236.  McDonough  v.  Gilman,  3  Mining  &  Smelting  Co.  (Mont, 
Allen    (Mass.)    264,  80   Am.  Dec.   72.  1905),  79  Pac.  14.     Examine  Coats  v. 

237.  Wabash  R.  Co.  v.  Sanders,  58  Atchison,  Topeka  &  Santa  Fe  Ry.  Co.. 
111.  App.  213;  Carleton  v.  Reding-  (Cal.),  82  Pac.  640.  But  see 
ton,  1  Fost.   (N.  H.)  291.  contra    Castle    v.    Smith     (Cal.),    36 

238.  Cloverdale  v.  Smith,  128  Pac.  859.  under  §  3483  Cal.  Civ.  Code. 
Cal.  230,  60  Pac.  851;  Central  R.  R.  241.  Bartlett  v.  Siman,  24  Minn. 
v.    English,    73    Ga.    3G6;    Hickey    v. 

659 


§  459      Remedies,  Parties,  Defenses  and  Damages. 

§459.  Liability  for  continuing  nuisance — Statute  of  limita- 
tions—Rulings and  instances.— In  Alabama  it  is  held  that  an 
action  on  the  case  lies  against  him  who  erects  a  nuisance,  and,  not- 
withstanding a  recovery  for  its  erection,  it  may  afterwards  be 
maintained  against  him  for  the  continuance  though  he  has  made  a 
lease  of  it  to  another,  as  he  has  transferred  it  with  the  original 
wrong  and  his  demise  affirms  the  continuance  of  it.  He  has  also 
rents  for  a  consideration  and,  therefore,  ought  to  answer  the  dam- 
age it  occasions.242  Under  an  Arkansas  decision,  where  a  nuisance 
is  of  a  permanent  character  and  its  construction  and  continuance 
are  not  necessarily  injurious,  but  may  or  may  not  be  so,  the  injury 
to  be  compensated  in  a  suit  is  only  the  damage  which  has  hap- 
pened, and  there  may  be  as  many  successive  recoveries  as  there 
are  successive  injuries.  In  such  case  the  statute  of  limitations 
begins  to  run  from  the  happening  of  the  particular  injury  com- 
plained of.243  In  Georgia,  where  a  person  persists  in  maintain- 
ing a  nuisance  which  is  not  permanent  in  its  character,  but  whicn 
can  and  should  be  abated,  every  continuance  of  the  nuisance  is  a 
fresh  nuisance  for  which  a  new  action  will  lie.  A  suit  against 
one  who  maintains  a  nuisance  of  such  a  character  for  damages  done 
to  the  land  of  the  plaintiff  from  a  named  date  to  the  filing  of  a 
petition,  is  no  bar  to  a  fresh  action  for  damages,  since  done  to  the 
same  land  by  the  maintenance  of  the  same  nuisance.244  But  in 
that  State  a  sewer  nuisance  is  not  such  a  continuing  one  as  to  sus- 
tain a  suit  for  damages  brought  more  than  four  years  after  the 
work  was  done ;  and  such  a  case  is  not  within  a  constitutional  pro- 
vision that  compensation  shall  be  made  where  private  property  is 
damaged  for  public  use.245  In  Illinois  an  action  may  be  maintained 
for  the  creation  of  a,  nuisance,  and  a  subsequent  action  may  be 
maintained  for  its  continuance.  The  continuance  of  that  which 
was  originally  a  nuisance  is  regarded  as  a  new  nuisance,  and  al- 
though a  recovery  may  be  barred  upon  the  original  cause,  an  action 

448.     See  Brown  v.  Cayuga  &  S.  R.  S.  R.  Co.  v.  Biggs,  52  Ark.  240,  6  L. 

Co.,   12  N.  Y.  486.  R-  A.  804,  12  S.  W.  331. 

242.  Grady    v.    Wolsner,    46    Ala.  244.  Southern   Ry.    Co.    v.    Cooke, 
381,  7  Am.  Rep.  593.  117  Ga.  28G.  43  S.  E.  697. 

243.  St.    Louis    Iron    Mountain    &  245.  Atkinson   v.    Atlanta.   81    Ga. 

625,  7  S.  E.  692. 

660 


Remedies,  Pakties,  Defenses  and  Damages.        §  450 

on  the  case  may  be  brought  at  any  time  before  an  action  is  barred, 
to  recover  such  damages  as  have  accrued,  by  reason  of  its  continu- 
ance within  the  statutory  period.246  A  nuisance  which  may  be 
abated  by  law  is  not  regarded  as  a  permanent  source  of  injury,  but 
as  a  continuing  nuisance.  Successive  actions  for  damages  occa- 
sioned by  it  may  be  maintained  from  time  to  time  as  such  damages 
are  inflicted.247  And  where  the  damages  are  not  so  permanent  and 
certain  in  their  character  as  to  enable  the  jury  to  give  compensa- 
tion at  once  for  the  entire  injury,  but  the  nuisance  is  in  its  nature 
a  continuing  one,  in  such  case  successive  actions  may  be  brought 
and  sustained  as  long  as  such  nuisance  is  maintained.248  Under 
an  Indiana  decision,  one  who  erects  a  nuisance  is  liable  for  a  con- 
tinuance, as  for  a  new  nuisance,  as  long  as  it  continues,  and  it  is 
not  in  his  power  to  release  himself  therefrom  by  granting  it  over 
to  another.249  In  an  Iowa  case  it  is  held  that  a  liquor  nuisance 
shown  to  recently  exist,  will  be  presumed  to  continue,  in  the  ab- 
sence of  evidence  to  the  contrary,  so  that  actual  sales  need  not  be 
shown  up  to  commencement  of  an  action  to  enjoin.250  Under  a 
Maine  decision,  a  recovery  of  damages  for  the  erection  of  a  build- 
ing, or  other  structure,  upon  another's  land,  does  not  operate  as 
a  purchase  of  the  right  to  have  it  remain  there;  and  successive 
actions  may  be  brought  for  its  continuance,  until  the  wrongdoer 
is  compelled  to  remove  it.2al  In  Maryland,  it  is1  held  that  in  order 
to  constitute  a  continuance  of  a  nuisance  erected  by  another  there 
must  be  some  active  participation  in  the  continuance  of  it  or  some 
positive  act  evidencing  its  adoption.202  Under  a  Massachusetts 
case,  an  action  on  the  case  lies  against  him  who  erects  a  nuisance, 
and  against  him  who  continues  a  nuisance  erected  by  another,  and 
the  continuance,  and  every  use  of  that  which  is  in  its  erection  and 

246.  Chicago,  Burlington  &  Quin-  (Ind.)  447.  See  Helwig  v.  Jordan, 
cey  R.   Co.   v.   Schaffer,   124   111.    112,       53  Ind.  21,  21  Am.  Rep.  189. 

121,  16  N.  E.  239,  14  West.  Rep.  139  250.  McCoy   v.    Clark    (Iowa),    81 

per  Magruder,  J.  N.   W.    159. 

247.  Baker  v.  Leka,  48  111.  App.  251.  Cumberland  &  Oxford  Canal 
353,  citing  16  Am.  &  Eng.  Ency.,  Corp.  v.  Hitchings,  65  Me.  140,  per 
986   (1st  ed.).  Walton,    J. 

248.  Mellor  v.  Pilgrim,  3  111.  252.  Walter  v.  County  Commis- 
App.  476.  sioners  of  Wicomico  Co.,  35  Md.  385. 

249.  Jordan    v.    Helwig,    1    Wils. 

661 


§  460      Remedies,  Parties,  Defenses  and  Damages. 

use  a  nuisance,  is  a  new  nuisance,  for  which  the  party  injured  has 
his  remedy  in  damages.  And  although,  after  judgment,  and  dam- 
ages recoverd,  in  an  action  for  erecting  a  nuisance  another  action  is 
not  to  be  maintained  for  the  erection,  yet  another  action  will  lie 
for  the  continuance  of  the  same  nuisance.253  In  Minnesota  it  is 
decided  that  a  recovery  for  a  nuisance  does  not  bar  a  subsequent 
recovery  for  its  continuance;254  and  that  where  land  is  injured 
through  the  erection  and  maintenance  of  a  nuisance  by  an  adjoin- 
ing owner  upon  his  lands,  the  latter  is  liable  to  successive  actions 
for  damages.  He  cannot  release  himself  from  such  liability  by 
a  conveyance  of  the  premises.  So  every  continuance  of  a  nuisance, 
or  recurrence  of  the  injury,  is  also  an  additional  nuisance  forming 
in  itself  the  subject  matter  of  a  new  action.255 

§  460.  Same  subject. — In  Missouri  a  nuisance;  by  collecting 
surface  waters  into  artificial  channels  and  casting  them  in  a  body 
upon  a  neighboring  proprietor,  whether  by  an  individual  or  muni- 
cipal corporation,  if  continued  becomes  a  fresh  nuisance  every  day, 
and  authorizes  new  suits  accordingly.256  Under  a  Nebraska  deci- 
sion, if  a  railway  bridge  is  a  nuisance  and  an  unlawful  obstruc- 
tion in  a  river,  then  every  continuance  of  such  nuisance  is  a  new 
nuisance,  for  which,  when  damages  have  been  sustained,  an  action 
may  be  maintained,  the  recovery  being  limited  to  such  damages 
as  have  accrued  before  the  action  was  brought,  and  when  damages 
result  from  a  continuing  nuisance  a  recovery  may  be  had  for  each 
injury  as  it  occurs.257  In  New  York  whoever  continues  and  adopts 
a  nuisance  is  as  responsible  for  an  injury  caused  thereby  as  if  he 
had  constructed  it.258  And  it  is  held  that  where  one  is  maintaining 
a  nuisance  and  polluting  a  stream,  flowing  through  his  land,  with 

253.  Staple  v.  Spring,  10  Mass.  257.  Omaha  &  Republican  Valley 
72.  73,  74.  per  Sewall,  J.                             R.   Co.   v.   Standen,   22   Neb.   343,   35 

254.  Byrne  v.  Minneapolis  &  St.  L.       N.  W.   183. 

R.  Co.,  38  Minn.  212,  36  N.  W.  339.  258.  Dukes    v.    Eastern    Distilling 

255.  Sloggy  v.  Dilworth,  38  Minn.  Co.,  51  Hun,  605,  22  N.  Y.  St.  R.  833. 
179,  36  N.  W.  451,  8  Am.  St.  Rep.  Compare  as  to  the  principal  point 
656.  in  the  case  Neff  v.  New  York  Central 

256.  Paddock  v.  Somes,  102  Mo.  &  H.  H.  R.  Co.,  80  Hun,  394,  396,  62 
226,  237,  10  L.  R.  A.  254,  14  S.  W.  N.  Y.  St.  R.  833,  30  N.  Y.  Supp.  324. 
746. 

'662 


Remedies,  Parties,  Defenses  and  Damages.        S  160 

sewage  rendering  such  stream  unfit  for  his  uses  as  a  riparian  pro- 
prietor and  materially  damaging  him;  and  such  nuisance  is  con- 
stantly increasing  and  will  be  continued  permanently  unless  re- 
strained by  the  court,  a  clear  case  exists  for  equitable  relief  and 
an  injunction.209  It  is  also  decided  that  if  the  grievance  com- 
plained of  is  a  continuing  nuisance,  consisting  of  the  discharge  of 
sewage  or  effluent  into  the  waters  of  a  river,  without  right,  pro- 
ducing foul  and  offensive  odors  and  discoloring  and  polluting  the 
waters,  it  is  the  duty  of  a  court  of  equity  to  grant  relief  to  those 
injured.260  So  under  another  case  in  that  State  an  action  in  equity 
may  be  maintained  to  enforce  an  order  made  by  a  board  of  health 
for  the  suppression  and  removal  of  a  nuisance  consisting  of  the 
discharge  upon  town  lands,  by  a  city  of  sewage,  and  such  court 
may  restrain  its  continuance,  and  a  continuance  of  the  discharge  of 
such  sewage  after  service  of  notice  of  such  resolution  of  the  board 
is  a  violation  of  the  order  for  which  an  action  lies.261  Under  a 
New  Jersey  decision  the  owner  of  premises  upon  which  a  nuisance 
has  been  erected  by  his  predecessor  in  title  is  responsible  for  in- 
juries occasioned  thereby  if  he  continues  the  nuisance.262  In  Penn- 
sylvania it  is  held  that  a  single  trespass,  or  several,  not  coupled 
with  circumstances  indicating  that  they  are  to  be  repeated  continu- 
ously, are  generally  redressed  by  the  common  law  action  of  dam- 
ages. But  when  they  are  constantly  recurring,  and  threaten  to 
continue,  it  is  well  settled  that  they  may  be  redressed  in  equity  by 
injunction.263  And  so  parties  who  cause  a  nuisance  by  acts  done  on 
the  land  of  a  stranger,  are  liable  for  its  continuance ;  and  it  is  no 
defense  that  they  cannot  lawfully  enter  to  abate  the  nuisance  with- 
out rendering  themselves  liable  to  an  action  by  the  owner  of  the 
land.  And  where  plaintiff  declares  for  a  nuisance,  and  a  for- 
mer recovery  under  a  similar  count  is  shown,  the  plaintiff  is  not 
concluded  from  recovering  for  injuries  suffered  from  the  con- 
tinuance of  the  nuisance;  for  to  estop  the  plaintiff,  the  former 

259.  Sammons  v.  City  of  Glovers-  261.  Bell   v.    Rochester,   33   N.   Y. 
ville,  81  N.  Y.  App.  Div.  332,  81  N.       St.  It.  739,  11  N.  Y.  Supp.  305. 

Y.   Supp.  466.  262.  Meyer  v.  Harris,  01   N.  J.  L. 

260.  Butler    v.    Village    of    White       83,  38  Atl.  090. 

Plains,   59   N.  Y.   App.   Div.   30,   33,  263.  Stewarts  Appeal,  56  Pa.  413, 

69  N.  Y.  Supp.  193.  422. 

663 


§  460      Remedies,  Pakties,  Defenses  and  Damages. 

recovery  must  be  pleaded.  To  avoid  an  estoppel  plaintiff  mast 
declare  for  a  continuance  of  the  nuisance.264  But  the  nuisance 
may  be  no  such  continuing  one  as  that  equity  will  interfere  to  abate 
it,  as  where  the  nuisance  or  obstruction  is  one  from  which  the 
party  could  by  his  own  act  have  relieved  himself.  265  It  is  held  in 
a  Tennessee  case  that  a  nuisance  arising  from  the  discharge  of  a 
city's  sewerage  near  private  property  is  a  recurring  one,  and  will 
sustain  successive  actions,  where  the  plan  for  sewers  adopted  by  the 
city  contemplates  the  discharge  of  the  sewage  at  another  point, 
and  its  discharge  at  the  point  in  question  is  apparently  only  tem- 
porary.266 And  under  another  decision  in  that  State,  if  a  railroad 
company  uses  a  street  foi  the  operation  of  its  road  beyond  what  is 
necessary  for  the  running  of  its  trains,  and  by  such  excessive  and 
improper  use  substantially  destroys  the  easement  of  way  and  of 
ingress  and  egress  appurtenant  to  an  owner  to  an  abutting  lot, 
such  railway  company  is  liable  to  such  abutting  owner  in  success- 
ive actions  for  the  nuisance,  and  damages  are  recoverable  up  to 
the  time  each  action  was  brought.  Nor  will  the  recovery  in  one 
action  bar  a  subsequent  one  brought  for  the  continuance  of  such 
wrongs.2b7  So  under  a  Washington  case  the  court  has  jurisdiction 
to  enjoin  a  continuing  nuisance  such  as  a  house  of  ill-fame,  al- 
though a  public  nuisance,  where  it  renders  plaintiff's  property 
unfit  for  residence  purposes,  and  it  is  immaterial  that  plaintiff 
purchased  his  property  after  the  commencement  of  the  nuisance, 
as  the  right  of  action  in  favor  of  plaintiff's  grantors  runs  with  the 
land  and  also  is  a  continuing  offense,  and  lapse  of  time  bars  re- 
covery for  a  completed  offense.268  In  Wisconsin  it  is  held  that, 
where  the  statute  so  permits,  an  equitable  action  may  be  main- 
tained to  restrain  defendant  from  discharging  upon  plaintiffs  land, 
through  a  ditch,  surface  waters  collected  into  a  basin  by  defendant, 
where  the  injury  is  continuous  and  constantly  recurring.269     And 

264.  Smith  v.   Elliott,  9   Pa.   345.  268.  Ingersoll     v.     Rousseau,      35 

265.  Barclay's  Appeal,  93  Pa.   50,       Wash.   72,   76  Pae.   513. 

55.  269.  Wendlandt  v.  Cavanaugh,  85 

266.  Chattanooga  v.  Dowling,   101  Wis.  256,  55  X.   W.   408,   Wis.  Laws 
Tenn.  342,  47  S.  W.  700.  1882,  chap.    190   amdg.   Rev.   Stat.   § 

267.  Harmon  v.  Louisville  N.  O.  &  3180  (G.  &  B.  Ann.  Stats.) 
T.  R.  Co.,  87  Tenn.  614,  11  S.  W.  703. 

664 


Remedies,  Parties,  Defenses  axd  Damages.        §461 

when  a  building  is  erected  for  a  use  which  works  a  nuisance,  the 
nuisance  is  created,  and  continues  till  the  use  is  abandoned.  It 
remains  a  continuing  nuisance  though  the  use  may  be,  in  its 
ordinary  course  or  by  accident,  suspended  at  times,  until  it  be  so 
suspended  as  to  operate  as  an  abandonment  so  where  lime-kiln 
is  once  erected  and  used,  its  subsequent  use  in  the  course  of  busi- 
ness, if  a  nuisance,  is  a  continuing  one.  Each  successive  burning 
of  lime  is  not  an  original  nuisance.270  Under  a  Federal  case  if  the 
cause  of  annoyance  and  discomfort  be  continuous  equity  will 
restrain  it.271 

§  461.  Liability — Landlord  and  tenant — Distinction  to  be  ob- 
served.— A  distinction  exists  between  the  liability  of  a  landlord  to 
one  of  his  tenants  for  letting  defective  premises  with  concealed 
dangers,  or  between  a  case  where  the  accident  arises  from  a  defect 
known  by  the  tenant  but  not  a  nuisance,  and  the  case  of  a  nuisance 
which  the  landlord  should  abate,  and  concerning  which  he  owes 
the  duty  of  care  and  is  liable  for  his  negligence  to  all  to  whom  he 
owes  such  duty;  and  if  a  landlord  lets  a  tenement  in  a  defective 
condition  he  is  not  liable  to  a  stranger  injured  by  the  defect  unless 
it  amounts  to  a  nuisance.272  So  it  is  declared  that  in  order  to 
charge  the  landlord  the  nuisance  must  necessarily  result  from  the 
ordinary  use  of  the  premises  by  the  tenant  or  for  the  purpose  for 
which  they  were  let ;  and  where  the  ill  results  flow  from  the  im- 
proper or  negligent  use  of  the  premises  by  the  tenant,  or,  in  other 
words,  where  the  use  of  the  premises  may  or  may  not  become  a 
nuisance,  according  as  the  tenant  exercises  reasonable  care  or  uses 
the  premises  negligently,  the  tenant  alone  is  chargeable  for  the 
damages  arising  therefrom.273 

270.  Slight  v.  Gutzlaff,  35  Wis.  273.  Langabaugh  v.  Anderson,  68 
675,  17  Am.  Rep.  476.                                 Ohio  St.  131,  14  Am.  Neg.  Rep.  170, 

271.  Baltimore,  etc.,  R.  Co.  v.  181,  67  N.  E.  286,  quoting  from 
Fifth  Baptist  Church,  108  U.  S.  317,  Wood  on  Landlord  and  Tenant  (2nd 
329.  Ed.)    §  536. 

272.  Brady  v.  Klein,  133  Mich. 
422,  95  N.  W.  557,  14  Am.  Neg.  Rep. 
351. 


669 


§  462      Kemedies,  Parties,  Defenses  and  Damages. 

§  462.  When  owner  or  landlord  liable  to  third  persons. — Rules 
and  instances. — When  the  owner  leases  premises  which  are  a 
nuisance,  or  must  in  the  nature  of  things  become  so  by  their  user, 
and  receives  rent,  then,  whether  in  or  out  of  the  premises,  he  is 
liable.274  And  where  a  landowner  erects  or  creates  a  nuisance 
on  his  land  he  cannot  rid  himself  of  liability  occasioned  by  a 
demise  of  the  property  to  another.  Before  the  assignment  he  was 
liable  and  he  cannot  discharge  himself  by  granting  it  over,  espec- 
ially where  he  reserves  rent  which  recompenses  him  for  a  continu- 
ance of  the  nuisance  and  affirms  the  same.275  So  in  New  York  it  is 
declared  that :  "  The  owner  is  responsible  if  he  creates  a  nuisance 
and  maintains  it;  if  he  creates  a  nuisance  and  then  demises  the 
land  with  the  nuisance  thereon,  although  he  is  out  of  occupation ; 
if  the  nuisance  was  erected  on  the  land  by  a  prior  owner,  or  by  a 
stranger,  and  he  knowingly  maintains  it ;  if  he  has  demised  prem- 
ises and  covenanted  to  keep  them  in  repair,  and  omits  to  repair 
and  thus  they  become  a  nuisance;  if  he  demise.;  premises  to  be 
used  as  a  nuisance  or  for  a  business,  or  in  a  way  that  will  neces- 
sarily become  a  nuisance."276  So  one  who  demises  premises  for 
carrying  on  a  business  necessarily  injurious  to  the  adjoining  pro- 
prietors is  liable  as  the  author  of  the  nuisance.277  And  in  an  action 
to  recover  damages  for  a  nuisance  caused  by  the  erection  of  a  barn 
or  stable  upon  the  defendants  land  adjoining  the  plaintiffs  dwell- 
ing house  and  allowing  manure  and  filthy  water  to  accumulate  and 
stand  in  the  cellar  thereof,  it  is  not  erroneous  for  the  judge  to 
charge  the  jury  that  if  the  defendant  constructed  and  adapted  the 
barn  so  that  in  its  ordinary  use  it  would  be  injurious  and  offensive 
to  the  plaintiff,  and  cast  unwholesome  odors  into  his  house,  the 
defendant  is  liable  for  the  nuisance  thus  caused  by  the  tenants  to 

274.  Metropolitan  Savings  Bk.  v.  203,  209,  26  N.  Y.  St.  R.  295,  22  N. 
Marion,  87  Md.  68,  69,  39  Atl.  90.  E.  193,  5  L.  R.  A.  449,  40  Alb.  L.  J. 
Citing  and  quoting  from  Maenner  v.  424,  12  Am.  St.  Eep.  778,  per  Earl, 
Carroll,  46  Md.  216,  per  Alvey,  J.;  J.,  rev'g  48  Hun,  517,  16  N.  Y.  St.  R. 
Owing  v.   Jones,   9   Md.    117,   per   Le  24. 

Grand,  Ch.  J.  Liability       of       Landlord       to 

275.  Terminal  Co.  v.  Jones,  109  third  person  for  nuisances.  See 
Tenn.  727,  72  S.  W.  954,  61  L.  R.  A.       note  26  L.  R.  A.  197. 

188.  277.  Fish  v.   Dodge,   4   Denio    (N. 

276.  Ahem   v.   Steele,    115    N.    Y.       Y.)   311,  317/47  Am.  Dec.  254. 

666 


Remedies,  Parties,  Defenses  and  Damages.        §  463 

whom  he  had  let  the  barn.  So  where  a  barn  is  built  to  be  used 
in  a  certain  way  and  its  use  in  that  way  would  necessarily  under 
ordinary  circumstances  be  a  nuisance  if  it  is  let  to  a  tenant  who  in 
fact  uses  it  in  that  way  and  such  use  proves  noxious  or  injurious  to 
adjoining  occupants  the  owner  is  liable  for  the  injury.278  Again,  if 
a  tenant  creates  a  nuisance  upon  the  premises  during  the  term,  by 
an  unusual  and  extraordinary  use  thereof,  the  landlord  becomes 
chargeable  with  its  continuance  whore  he  renews  the  lease  with 
the  nuisance  thereon,  although  he  could  not  be  held  liable  for  the 
consequences  in  the  first  instance.279  And  the  owner  of  adjoining 
land  occupied  by  tenants  is  liable  for  a  nuisance  caused  by  privy 
pits,  if  the  pits  are  so  constructed  that  the  constant  use  of  them 
will  necessarily  result  in  the  creation  of  a  nuisance  or  in  a  continu- 
ing nuisance,  or  if  they  are  permitted  to  remain  in  an  unsanitary 

1  1  '  280         Q 

condition  where  there  is  power  to  remedy  the  grievance.  bo 
whereoneowns  land  on  which  a  kiln  was  erected  by  himself  and  his 
partners  for  partnership  purposes,  but  sells  out  his  interest  to  his 
partners  and  leases  the  real  estate  on  which  the  kiln  is  situated 
and  receives  rent  therefor,  and  the  kiln  when  used  is  dangerous 
to  the  property  of  others,  such  owner  must  be  held  to  have  knowl- 
edge of  its  intended  use  and  the  danger  therefrom  to  the  property 
of  others ;  so  that,  having  retained  title  to  the  land  and  deriving 
an  income  from  its  use,  including  the  kiln,  he  becomes  liable  to  a 
third  person  for  injury  from  the  burning  of  the  latters  house 
occasioned  by  the  use  of  said  kiln.281 

§  463.  Same  subject — Defective,  dangerous,  etc.,  condition  of 
premises. — When  injuries  result  to  a  third  person  from  the  faulty 
or  defective  construction  of  the  premises,  or  from  their  ruinous 
condition  at  the  time  of  the  demise,  or  because  they  then  contain  a 
nuisance,  even  if  this  only  becomes  active  by  the  tenant's  ordinary 

278.  Pickard  v.  Collins,  23  Barb.  281.  Helwig  v.  Jordan,  53  Ind.  21, 
(N.  Y.)   444.  21  Am-  ReP-  189'  approving  the  Prin_ 

279.  Fleischner  v.  Citizens  Real  ciples  of  Jordan  v.  Helwig,  1  Wils. 
Est.  &  Invest.  Co.,  25  Oreg.  119,  128,  (Ind.)  447,  but  distinguishing  that 
35  Pac.   174.  case. 

280.  Park  v.  White  (Ch.),  23  Ont. 
Rep.  611. 

.66.7 


§  463      Remedies,  Parties,  Defenses  and  Damages. 

use  of  the  premises,  the  landlord  is  still  liable  notwithstanding  the 
lease.282  And  if  the  premises  rented  are  in  such  a  dangerous  con- 
dition as  to  constitute  a  nuisance  at  the  time  of  the  renting  the 
lessor  remains  liable  for  the  consequences  of  the  nuisance,  even 
though  his  lessee  may  also  be  liable,  and  if  the  premises  are  rented 
for  a  public  use,  for  which  he  knows  that  they  are  unfit  and  danger- 
ous, he  is  guilty  of  negligence  and  may  become  responsible  to  per- 
sons suffering  injury  while  rightfully  using  them.283  The  owner  of 
premises  is  also  liable,  by  reason  of  the  defective  construction  and 
dangerous  condition  of  the  premises,  even  though  they  are  at  the 
time  in  the  possession  of  the  tenant,  if  the  defect  existed  when  the 
owner  leased  the  property ;  so  that  the  landlord  is  held  to  be  liable 
in  an  action  by  a  board  of  health  for  a  nuisance  from  waste  water 
and  faecal  matter  being  allowed  to  run  from  defendants  premises 
into  the  streets  of  a  village.284  So  the  owner  of  a  building  under 
his  control  and  in  his  occupation  is  bound,  as  between  himself 
and  the  public,  to  keep  it  in  such  a  proper  and  safe  condition,  that 
travellers  on  the  highway  shall  not  suffer  injury.  It  is  the  duty 
of  the  owner  to  guard  against  the  danger  to  which  the  public  is  thus 
exposed,  and  he  is  liable  for  the  consequences  of  having  neglected 
to  do  so.285  The  landlord  is  also  liable  where  the  premises  are  so 
constructed  or  in  such  a  condition  that  the  continuance  of  their 
use  by  the  tenant  must  result  in  a  nuisance  to  a  third  person,  and 
a  nuisance  does  so  result.285  So  a  water  pipe  or  conductor  which 
throws  water  upon  the  walk,  and  freezes  regularly  in  the  winter 
season  for  several  years  and  renders  the  walk  dangerous  to  the 
public  is  a  nuisance ;  and  where  the  nuisance  was  there  when  the 
tenants  took  possession,  the  lessor  is  liable  to  third  persons  for 

282.  Felhauer  v.  City  of  St.  Louis,  Health  v.  Valentine,  11  N.  Y.  Supp. 

178  Mo.  635,  646,  77   S.  W.  843,  per  112,  32  N.  Y.  St.  R.  919. 

Brace,   P.  J.,  quoting  from  Taylor's  285.  Gray    v.    Boston    Gas    Light 

Landlord     and     Tenant     (8th     Ed.)  Co.,  114  Mass.  149,  153,  19  Am.  Rep. 

c   j74  324,  per  Endicott,  J. 

283    Barrett     v.     Lake     Ontario  286.  Isham  v.  Broderick,  89  Minn. 

Beach  Imp.  Co.,  174  N.  Y.  310,  314,  397,      95      N.      W.      224,      14      Am. 

14  Am.  Neg.  Rep.  144,  146.  Neg.  Rep.    112,  115,  citing  Brown  v. 

284.  New      Rochelle      Board      of  White,  202  Pa.  St.  297,  51  Atl.  962, 

12  Am.  Neg.  Rep.  132. 


668 


Kemedies,  Parties,  Defenses  axd  Damages.       §  464 

injuries  occasioned  thereby,  since  lie  continues  the  nuisance  by 
leasing  premises  then  dangerous  to  the  public.287 

§  464.  Lessor  of  structure  or  building  for  public  entertain- 
ment liable. — The  lessors  or  owners  of  buildings  or  structures  in 
which  public  exhibitions  and  entertainments  are  designed  to  be 
given  and  for  admissions  to  which  the  lessors  directly  or  indirectly 
receive  compensation  are  subject  to  a  different  rule  from  that  in 
the  ordinary  cases  of  leasing  of  buildings  in  that  while  there  is 
in  the  latter  no  implied  warranty  on  the  part  of  the  lessor  that  the 
buildings  are  fit  and  safe  for  the  purposes  for  which  they  are  used 
yet  in  the  former  case  the  lessors  or  owners  of  such  buildings  or 
structures  hold  out  to  the  public  that  the  structures  are  reasonably 
safe  for  the  purposes  for  which  they  are  let  or  used  and  impliedly 
undertake  that  due  care  has  been  exercised  in  their  erection  and 
such  lessor  having  created  an  unsafe  and  dangerous  structure  and 
not  having  performed  his  duty  in  exercising  the  proper  degree  of 
care  to  know  that  it  was  safe  he  is  liable  to  a  person  injured  by 
reason  of  its  being  unsafe  or  of  improper  and  faulty  construction 
whereby  it  constitutes  a  nuisance.288 

§  465.  Liability  of  lessee  who  sublets. — The  same  liability 
as  to  nuisances  rests  upon  the  lessees  of  a  building  as  upon  the 
owner,  where  such  lessees  sublet  the  premises  and  are  chargeable 
with  or  have  knowledge  of  the  existence  of  a  nuisance.289 

§  466.  When  owner  or  landlord  not  liable  to  third  persons — 
Rules  arid  instances. — It  is  a  general  rule  that  where  the  owners 
of  the  ground  lease  the  building  and  the  alleged  nuisance  is  neither 
created  nor  maintained  by  them,  but  by  the  lessees,  an  action  can- 
not be  upheld  against  such  owners,  since  no  liability  can  attach 
to  a  lessor  for  a  nuisance  created  or  maintained  on  the  premises 

287.  Isham  v.  Eroderick,  89  Minn.  289.  Timlin  v.  Standard  Oil  Co., 
397,  95  N.  W.  224,  14  Am.  Neg.  Rep.  126  N.  Y.  514,  37  N.  Y.  St.  R.  900, 
112.  27  N.  E.  786,  rev'g  54  Hun,  44,  26  N. 

288.  Fox  v.  Buffalo  Park,  21  N.  Y.  Y.  St.  R.  42,  7  N.  Y.  Supp.   158. 
App.  Div.  321,  47   N.  Y.   Supp.   788, 

affd  163  N.  Y.  559. 

669 


§  466      Remedies,  Pakties,  Defenses  and  Damages. 

by  a  tenant.290  Another  general  rule  is  that  where  property  is  not 
in  itself  a  nuisance,  or  at  the  time  of  the  demise  is  not  a  nuisance, 
but  may  or  may  not  become  such  according  to  the  manner  of  use 
by  the  tenant  in  possession,  the  landlord  will  not  be  liable  for  a 
nuisance  created  on  the  premises  by  the  tenant.291  And  where 
a  nuisance  is  created  after  the  beginning  of  his  tenancy  by  a  tenant 
in  possession,  and  there  is  nothing  showing  the  nature  of  the  ten- 
ancy, or  whether  the  owner  was  to  keep  the  premises  in  repair  and 
it  does  not  appear  that  the  owner  had  knowledge  of,  or  anything  to 
do  with  creating  or  maintaining  the  nuisance*,  which  consisted  in 
diverting  a  water-course,  or  that  he  was  at  fault  at  the  time,  the 
mere  fact  of  ownership  does  not  create  any  liability  against  such 
landlord.292  So  where  the  owner  of  an  apartment  house  rents  only 
the  apartments,  reserving  to  himself  and  taking  care  of  the  hall- 
ways and  a  passageway  to  the  sidewalk  by  a  janitor,  and  the 
tenants  have  no  control  over  or  charge  of  the  hallways  or  passage- 
ways, it  being  the  duty  of  the  owner  to  use  ordinary  care  to  keep 
the  approaches  or  passageways  from  the  public  street,  used  in  com- 
mon by  his  tenants  in  a  reasonably  safe  condition,  such  owner  is 
held  not  liable  to  a  visitor  to  one  of  his  tenants,  caused  by  slipping 
upon  a  patch  of  smooth  ice  formed  by  natural  causes  and  not  re- 
moved by  the  owner  from  such  approaches  or  passageways  within  a 
reasonable  time  after  a  fall  of  snow  and  sleet  which  caused  it,  it 
not  being  of  such  a  rough  and  uneven  character  as  to  cause  an 
obstruction.293  And  the  principle  that  the  landowner  who  erects 
a  nuisance  on  his  land  cannot  divest  himself  of  liability  by  a 
demise  of  the  property  to  another  is  held  not  to  apply  where  the 
structure  or  work  is  not  of  itself  a  nuisance  and  where  the  letting 
is  general  in  its  character.    In  such  case  if  the  use  of  such  structure 

290.  Grogan    v.    Broadway    Foun-  292.  Maxwell    v.    Shirts,    27    Ind. 
dry  Co.,  87  Mo.  321,  327.                            App.  529,  61  N.  E.   754,  87   Am.   St. 

291.  Metropolitan   Savings   Bk.   v.       Rep.  268. 

Manion,   87   Md.   68,  69,  39  Atl.  90;  293.  Harkin  v.  Crumbie,  20  Misc. 

citing  and  quoting  from  Maenner   v.  568,  46  N.  Y.  Supp.  453,  rev'g  35  N. 

Carroll,   46   Md.   216,   per   Alvey,   J.;  Y.   Supp.   1027,  70  N.  Y.  St.  R.  731. 

Owing  v.   Jones,   9   Md.    117,   per   Le  See,     also,     Laufers-Weiler     v.     Bor- 

Grand,  Ch.  J.     See  Eastlock  v.  Local  chardt,  88  N.  Y.  Supp.  985. 
Board    of    Health    (N.   J.),    52    Atl. 
999. 

C70 


Kemedies,  Parties,  Defenses  and  Damages.        §  466 

or  work  does  not  ex  necessitate  make  a  nuisance,  1ml  if  after  the 
letting  it  is  used  by  the  tenant  so  as  to  create  one  then  the  tenant 
alone  should  be  liable.     This  rule  is  applied  to  the  owner  of  a 
railroad  roundhouse  which  was  not  a  nuisance  at  the  time  of  the 
leasing  and  only  became  one  upon  its  use  by  the  tenant,  and  a  judg- 
ment below  for  the  plaintiff  who  claimed  against  such  owner  to 
have  been  injured  and  damaged  in  her  property  and  comfort  was 
reversed.294     Again,  cellar  doors  or  cellar  openings  in  a  sidewalk 
constructed  by  an  abutting  owner  are  not  unlawful  and  a  nuisance 
per  se  when  properly  constructed,  in  good  repair,  and  affording 
when  closed  a  safe  passageway  for  those  traveling  on  the  sidewalk 
and  where  it  is  so  constructed  and  in  good  condition  at  the  time  of 
the  demise  and  otherwise  is  within  the  above  principles  the  land- 
lord is  not  liable  for  injuries  sustained  by  a  pedestrian  in  falling 
through  the  open  door.295     So  where  a  building  is  for  a  lawful 
purpose  which  cannot  become  injurious  only  under  special  circum- 
stances the  lessor  will  not  be  liable  unless  he  knew  or  had  reason  to 
believe  that  the  business  would  be  so  conducted  as  to  render  it  a 
nuisance.296     And  if  a  barn  erected  to  be  used  in  a  certain  way 
proves  a  nuisance  by  reason  of  water  in  the  cellar,  and  that  is  a 
special,  unusual  circumstance,  the  owner  is  not  liable,  unless  he 
knew,  or  had  reason  to  believe  when  he  let  the  barn  that  the  use 
of  it  in  the  ordinary  mode  would  prove  a  nuisance.297    In  an  Ohio 
case  it  is  held  that  where  one  owned  certain  premises  which  he 
fitted  up  for  the  sale  of  dry  goods  and  groceries  by  his  tenant  and 
he  agreed  with  the  tenant  that  he  would  construct  the  shelving 
and  other  fixtures  and  fasten  them  to  the  wall  so  that  they  would 
be  safe  and  they  were  put  in  the  room  by  the  landlord  so  careVs  ly 
and  negligently  that  they  fell  upon  and  injured  a  customer  of  the 
tenant  who  sued  the  owner  for  damages  it  was  held  that  he  could 
not  recover.     The  court  said:  "Indeed  the  noxious  fixtures  com- 
plained of,  did  not  amount  to  a  nuisance  at  all  in  the  legal  sense 
of  the  term.     They  were  not  maintained  in  violation  of  any  right 
of  the  public  or  of  any  member  of  the  public.     They  were  made 

294.  Terminal   Co.   v.   Jacobs,   100  296.   Fish   v.   Dodge,   4   Denio    ( X. 
Tenn.  727,  72  S.  W.  954,  61  L.  R.  A.       Y.),  311,  317,  47  Am.  Dec.  254. 

188.  297.  Pickard  v.   Collins,  23  Barb. 

295.  Felhauer  v.  City  of  St.  Louis        (N.  Y.)    444. 
178  Mo.  635,  77  S.  W.  843. 

G71 


§  467      Kemedies,  Parties,  Defenses  and  Damages. 

unsafe,  it  is  true,  but  did  not  tend  to  endanger  the  person  or 
property  of  strangers  to  the  premises.  They  were  made  unsafe  to 
persons  and  things  which  might  be  for  the  time  being  in  the  store- 
room, but  no  person  or  thing  could  rightfully  be  there  except  by 
pemission  and  upon  request  of  the  lessees.  *  *  *  Whatever, 
therefore,  may  be  the  right  of  the  plaintiff  as  such  customer  of 
the  tenant,  it  is  quite  clear  that  he  has  no  remedy  against  the  lessee 
as  the  erector  or  maintainer  of  either  a  public  or  private 
nuisance."  298 

§  467.  Liability  of  landlord  to  tenant. — A  landlord  may  be- 
come liable  to  a  tenant  by  reason  of  the  defective  construction  or 
condition  of  the  premises;  thus  where  there  were  several  tenants 
in  the  building  and  a  water  closet  in  the  upper  part,  to  which  all 
the  tenants  had  access,  had,  though  properly  constructed,  become 
out  of  order,  owing  to  the  tenants  negligence,  of  which  fact  the 
landlord  had  notice,  and  overflowed  and  injured  the  goods  of 
plaintiff,  who  rented  and  occupied  a  lower  story,  it  was  held  that 
the  landlord  was  liable  for  damages.299  In  a  Michigan  case  it  is 
held  that  a  declaration  which  sets  up  the  construction  and  continu- 
ance of  a  nuisance  by  the  landlord,  the  defendant,  upon  his  own 
land,  which  the  plaintiff  went  into  the  possession  of  as  tenant  with- 
out knowledge  of  the  existence  and  cause  of  the  nuisance ;  but  that 
the  landlord  had  knowledge  of  the  same  and  concealed  the  cause 
thereof  from  the  plaintiff  discloses  a  cause  of  action  in  tort  rest- 
ing upon  the  duty  of  the  landlord  to  disclose  to  the  lessee  defects 
in  the  leased  premises  amounting  to  nuisances  which  were  calcu- 
lated to  impair  and  did  impair  the  health  of  the  plaintiff  as  lessee. 
In  this  case  the  cause  alleged  did  not  rest  upon  any  covenant 
express  or  implied  of  the  landlord  to  repair  the  premises,  nor  that 
they  were  habitable  at  the  time  the  lease  was  made,  nor  did  it  rest 
necessarily  upon  the  relation  of  landlord  and  tenant,  but  was  based 

298.  Burdick  v.   Cheadle,  26   Ohio  Liability    Generally    of    Land- 
St.     393,    396,    397.       Considered    in       lord  for  damages  to  property  of 

Langahaugh  v.  Anderson,  68  Ohio,  tenant  caused  by  defective  premises. 
131,  67  N.  E.  286,  14  Am.  Neg.  Rep.  See  note  11  Amer.  Neg.  Rep.  pp.  SIS- 
NO.  182.  322. 

299.  Marshall   v.   Cohen,  44  Ga. 
489,  9  Am.  Rep.  170. 

672 


Remedies,  Parties,  Defenses  axd  Damages.        §   108 

upon  the  maxim  that  every  man  must  so  use  his  own  premises  as 
not  to  injure  others  either  in  person  or  property,  rightfully  in  the 
vicinity.300  Under  an  Iowa  decision  the  owner  of  a  tract  of  land 
conveyed  a  portion  thereof,  reserving  a  private  way  for  cattle. 
Subsequently  the  grantee  obstructed  the  way,  and  in  an  action  by 
the  lessee  of  the  balance  of  the  tract  for  damages  from  the  obstruc- 
tion, defendant  contended  that,  as  the  lessee  was  only  a  tenant  for 
years  he  could  not  avail  himself  of  the  reservation ;  it  was  held 
that  the  tenancy  gave  the  lessee  a  right  to  the  way,  and  the  cove- 
nant in  the  lease  as  to  the  reservation  did  not  affect  the  case.301 

§  468.  Liability  of  tenant. — The  ordinary  rule  of  law  is  that 
the  landlord's  liabilities  in  respect  of  possession  are  in  general 
suspended  as  soon  as  the  tenant  commences  his  occupation,302  for 
generally  and  prima  facie,  where  lands  are  in  the  occupation  of 
a  tenant  he  alone  is  responsible  for  any  nuisance  thereon  arising 
from  their  being  out  of  repair.  And  it  is  declared  that  it  is  not 
the  general  rule  that  an  owner  of  land  is,  as  such,  responsibls  for 
any  nuisance  thereon.  It  is  the  occupier  and  he  alone  to  whom  such 
responsibility  generally  and  prima  facie  attaches.303  So  it  is  held 
that  trustees,  in  occupation  of  premises  and  receiving  the  benefit 
thereof,  may  be  regarded  as  principals  in  maintaining  a  nuisance, 
as  well  also  as  upon  the  grounds  that  a  tenant  in  possession  is 
liable  for  damages  caused  by  his  premises  being:  out  of  repair.304 
And  where  the  lessee  of  real  estate  creates  a  public  nuisance  per  se 
an  action  may  be  maintained  against  him  to  abate  or  remove  the 
nuisance.305  So  restoring  a  structure  which  was  a  nuisance  to  a 
right  of  way,  and  which  has  been  abated,  will  render  a  tenant  for 
years  liable,  although  the  structure  existed  before  the  commence- 

300.  Kern  v.  Myll,  80  Mich.  525,  E.  193,  5  L.  R.  A.  449,  40  Alb.  L.  J. 
45  N.  W.  587,  8  L.  R.  A.  682.  424,  12  Am.  St.  Rep.  778,  per  Earl, 

301.  Morrison  v.  Chic.  &  N.  W.  J.,  rev'g  48  Hun,  517,  16  N.  Y.  St.  R. 
Ry.  Co.,  117  Iowa  587,  91  N.  W.  793.  24. 

302.  Felhauer  v.  City  of  St.  Louis,  304.  Murray  v.  Archer,  5  N.  Y. 
178  Mo.  635,  646,  77  S.  W.  843,  per  Supp.  326,  24  N.  Y.  St.  R.  36<3,  1 
Bruce,   P.   J.;   quoting  from  Taylor's  Silv.  S.  Ct.  366. 

Landlord  &  Tenant    (8th  Ed.)    §  174.  305.  City    of    Valparaiso    v.    Bo- 

303.  Ahern  v.  Steele,  115  N.  Y.  zarth,  153  Ind.  536,  47  L.  R.  A.  487, 
203,  209,  26  N.  Y.  St.  R.  295,  22  N.       55  N.  E.  439. 

673 


§  469      Remedies,  Parties,  Defenses  and  Damages. 

ment  of  his  tenancy,  but  merely  refitting  it  after  it  has  been 
injured  but  not  abated,  will  not  render  him  liable.306  The  lessee 
of  a  theatre  is  also  liable  for  obstruction  to  access  to  adjacent 
premises  by  reason  of  the  assembling  of  a  crowd  in  the  street 
previous  to  the  opening  of  the  theatre  doors.307  But  a  lessee  in 
actual  occupation  of  premises,  in  front  of  which  are  cellar  doors 
in  the  sidewalk  which  are  constructed  and  maintained  in  a  reason- 
ably safe  condition  for  passage  over  them,  is  not  liable  to  a 
pedestrian  for  injuries  sustained  in  falling  through  said  doors 
when  open,  where  such  lessee  had  no  knowledge  that  they  were 
open  and  could  not  by  reasonable  care  have  discovered  that  fact ; 
some  person  or  persons  not  in  the  lessees  employ  and  without  his 
authority  or  consent  having  opened  the  doors.30S  In  a  New  York 
case  in  the  Court  of  Common  Pleas  it  was  held  that  a  coal  hole  con- 
structed in  the  sidewalk  without  lawful  authority  was  a  nuisance 
rendering  the  lessee  or  occupant  liable  for  damages  for  an  injury 
occasioned  thereby  to  a  third  person.  This  decision  was  reversed, 
it  being  declared  that  it  was  not  necessary  to  determine  whether 
the  coal  hole  was  a  nuisance  so  as  to  render  defendant  liable  for 
any  damages  resulting  from  its  maintenance,  regardless  of  the 
question  of  negligence,  which  question  should  have  been  submitted 
to  the  jury.309  But  an  occupant  of  an  upper  floor,  the  title  being 
assumed  to  be  in  the  parties  in  possession,  there  being  no  evidence 
of  title,  is  liable  to  an  occupant  of  a  lower  floor  whose  property  is 
injured  by  leakage  from  the  floor  above,  resulting  from  said  floor 
being  badly  constructed  and  not  having  been  put  in  repair  by 
defendant.3"10 

§  469.  Liability  where  term  of  lease  is  nine  hundred  and 
ninety-nine  years. — Where  the  question  is  whether  a  tenant,  under 
a  lease  for  a  term  of  nine  hundred  and  ninety-nine  years,  becomes 

306.  McDonnell  v.  Gilman,  3  Al-  N.  Y.  App.  Div.  56,  72  N.  Y.  St.  R. 
len    (85  Mass.)   264,  80  Am.  Dec.  72.  147,  37  N.  Y.  Supp.  95,  rev'g  13  Misc. 

307.  Barber  v.  Penley  (1893),  2  139,  34  N.  Y.  Supp.  180,  68  N.  Y.  St. 
Ch.  447.  R.  230. 

308.  Felhauer  v.  City  of  St.  Louis,  310.  Patton  v.  McCants,  29  S.  C. 
178  Mo.  635,  77  S.  W.  843.  597,  6  S.  E.  848. 

309.  Kuechenmeister  v.   Brown,   1 

674 


Remedies,  Parties,  Defenses  and  Damages.      §  470 

responsible  for  damages  caused  by  the  existence  of  a  structure 
upon  the  demised  premises  which  is  a  nuisance,  when  such 
structure  was  put  there  by  his  lessor  prior  to  the  making  of  the 
lease,  and  when  the  tenant  maintains  it  in  the  condition  in  which 
it  came  to  him,  and  rebuilds  it  when  it  falls  out  of  repair;  the 
answer  to  such  question  depends  upon  the  estate  which  the  tenant 
has  by  virtue  of  his  lease.  The  law  imposes  upon  an  ordinary 
tenant  for  years  the  duty  of  keeping  the  demised  premises  in 
repair,  and  of  returning  them  at  the  end  of  his  term  in  approxi- 
mately the  same  condition  in  which  he  received  them.  If  he  fails 
to  do  this  and  suffers  the  estate  to  go  to  decay  for  want  of  necessary 
repairs  the  law  makes  him  liable  to  his  landlord  as  for  a  per- 
missive waste.  So,  too,  if  he  does  any  act  which  injures  the  in- 
heritance his  lessor  may  recover  against  him  as  for  a  voluntary 
waste.  This  being  so,  it  follows  necessarily  that  a  lessee  is  under 
no  obligation  to  a  third  person  either  to  tear  down  or  suffer  to  fall 
into  decay  a  structure  upon  the  demised  premises  which,  in  the 
state  in  which  it  was  at  the  commencement  of  the  term,  is  a 
nuisance  to  such  person.  The  law  does  not  impose  upon  anyone* 
the  duty  of  performing  an  act  for  the  benefit  of  one  person  which 
will  necessarily  subject  him  to  liability  at  the  hands  of  another. 
In  those  cases  in  which  the  nuisance  exists  at  the  time  of  the 
creation  of  an  estate  for  years  and  the  lessee  does  nothing  e:  cepfr 
to  maintain  the  demised  premises  in  the  condition  in  which  he 
received  them,  the  person  who  suffers  from  the  nuisance  must 
look  to  the  landlord,  and  not  to  the  tenant  for  redress.311 

§  470.  Liability  —  Landlord  and  tenant  —  Obligation  to  re- 
pair.— The  general  rule  of  law  is  that  the  tenant  and  not  the 
owner  is  responsible  for  injuries  received  in  consequence  of  a  fail- 
ure to  keep  the  premises  in  repair.  To  this  general  rule  these 
exceptions  exist.  (1)  When  the  landlord  has  by  an  express  agree 
ment  between  the  tenant  and  himself  agreed  to  keep  the  premises 
in  repair,  so  that  in  case  of  a  recovery  against  the  tenant  he  would 
have  his  remedy  over  against  the  landlord,  then,  to  avoid  circuity 

311.  Meyer  v.  Harris,  61  N.  J. 
L.  83,  98,  99,  38  Atl.  690,  language 
of  Gummere,  J. 

675 


§  470      Remedies,  Parties,  Defenses  axd  Damages. 

of  action,  the  party  injured  by  defect  and  want  of  repair  may  have 
his  action  in  the  first  instance  against  the  landlord.  (2)  When  the 
premises  are  let  with  the  nuisance  upon  them,  by  means  of  which 
the  injury  complained  of  is  received.  (3)  Where  the  landlord 
rents  premises  for  a  purpose,  which  in  the  very  nature  of  things, 
would  become  a  public  nuisance.312  Another  general  rule  is  that 
the  landlord  is  not  bound  to  make  repairs  unless  he  has  assumed 
such  duty  by  express  agreement  with  the  tenant.  This  rule  is, 
however,  subject  to  the  exception  that  where  there  exist  defects  in 
the  demised  premises,  attended  with  danger  to  an  occupant,  which 
a  careful  examination  would  not  disclose,  and  which  are  not  known 
to  the  tenant  but  are  known  by  the  landlord  to  exist,  then  an  obli- 
gation rests  upon  the  landlord  to  notify  the  tenant  of  such  defects, 
and  a  failure  to  make  such  disclosure  may  well  be  placed  upon 
the  ground  of  fraud  upon  the  tenant.  So  an  instruction  is  not 
erroneous  which  does  not  require  that  fraud  should  be  proven  in 
such  case,  but  only  concealment  of  the  defect.313  Again  the  right  of 
an  owner  to  enter  upon  the  demised  premises  and  make  repairs 
will  not  make  the  owner  liable  for  a  nuisance  thereon  when  he 
would  not  otherwise  be  responsible.  And  an  owner  who  has 
demised  premises  for  a  term  during  which  they  become  ruinous, 
and  thus  a  nuisance,  is  not  responsible  therefor  unless  he  has  cov- 
enanted to  repair.  It  has  even  been  held  that  an  owner  may 
demise  premises  so  defective  and  out  of  repair  as  to  be  a  nuisance, 
and  if  he  binds  his  tenant  to  make  the  repairs  he  is  not  responsible 
for  the  nuisance  during  the  term,  but  these  would  not  now  be 
generally  received  as  authority.314 

312.  Fleischner  v.  Citizens  Real  203,  209,  26  N.  Y.  St.  R.  295,  5  L. 
Est.  &  Invest.  Co.,  25  Oreg.  119,  126,  R.  A.  449,  22  N.  E.  193,  12  Am.  St. 
35  Pac.  174,  175,  language  of  Moore,  Rep.  778,  40  Alb.  L.  J.  424,  per  Earl, 
J.  J.,  rev'g  48  Hun,  517,    16  N.  Y.   St. 

Covenants    to    repair    generally.  R.    24.      See    Fisher    v.    Thirkell,    21 

See  notes,   95   Am.   Dec.   118-125;    49  Mich.  1,  4  Am.  Rep.  422. 

Am.  Dec.  374-375.  Repairs.     Distinction  between 

313.  Borggard  v.  Gale,  205  111.  several  tenements  in  building 
511,  68  N.  E.  1063,  aff'g  107  111.  App.  and  lease  of  entire  dwelling. 
128.  Action  on  the  case  for  damages  "  Tbe  landlord  retains  control, 
for  injurjT  sustained  by  tenant  and  responsibility,  to  a  greater  or 
through  defect  in  premises  leased.  less     extent,     for     the    condition    of 

31.4.  Ahem  v.    Steele,    115   N.   Y.       those  parts  of  the  building  which  are 

676 


Remedies,  Parties,  Defenses  asd  Damages.       §  471 

§  471-  Same  subject — Instances. — Where  it  was  conditioned 
in  the  lease  that  a  wharf  should  be  kept  in  repair  by  the  lessees 
such  a  provision,  even  though  the  lessees  were  in  possession,  was 
held  not  to  relieve  the  defendants,  who  had  leased  an  unsafe  and 
defective  wharf,  from  liability  to  a  laborer  who  had  received  fatal 
injuries,  by  the  falling  of  the  wharf,  while  he  was  assisting  in 
discharging  a  cargo  from  a  steamer.315  So  a  lessee  who  sublets  a 
pier,  which  he  had  covenanted  to  keep  in  repair,  will  be  liable  for 
injuries  sustained  by  a  third  person  because  of  the  defective  and 
ruinous  condition  of  the  pier.  Such  person  being  lawfully  thereon 
and  exercising  due  care  at  the  time  of  the  injury.316  In  another 
case  the  plaintiff,  a  driver  of  a  job  wagon,  was  injured  by  stepping 
into  a  hole  in  a  wharf,  while  attempting  to  carry  a  seaman's  chest 
on  board  a  vessel.  The  part  of  the  wharf  where  the  accident 
occurred  was  leased  to  others  by  the  agents  of  the  owners  of  the 
wharf,  for  the  purpose  of  loading  and  dispatching  vessels,  the 
agents  being  bound  to  repair.  Persons  going  to  the  vessel  were 
compelled  by  obstructions  in  other  parts  of  the  wharf  to  take  the 
route  which  plaintiff  took,  which  was  through  a  shed.  It  was  held 
that  the  owners  and  agents  were  liable  for  the  injury,  but  that  the 
liability  was  not  joint.  A  verdict  against  both  was  allowed  to 
stand  against  the  agents  on  the  discontinuance  of  the  action  as 
against  the  owners  of  the  wharf.317    The  owner  has  also  been  held 

used   in   common  by   or    for   all    the  principle    that    the    landlord    is    not 

tenants,   or  those  whom   they   invite  bound   to   put   or   keep   the    demised 

there,  such  as  the  sidewalks,  the  halls  premises    in    repair   has   no   applica- 

and     stairways,     and     the     basement  tion."     Chaplin  Landlord  and  Tenant, 

space  devoted  to  coal  bins,  and  also  §  488,  quoted  in  Harris  v.  Boardman, 

of  certain  classes  of  apparatus,  such  68   N.   Y.   App.    Div.    436,    74    N.   Y. 

as    the    hot    water    or    steam    pipes,  Supp.    963,    11    Am.    Neg.    Rep.    311. 

dumb  waiters,  etc.,  employed  to  heat  See,  also,  note  to  this  case,   11   Am. 

the  apartments  or  supply  other  con-  Neg.  Rep.   316. 

veniences.      Thus    he    has    a    degree  315.  Swords    v.    Edgar,    59   N.    Y. 

and  kind  of  responsibility  for  the  fit  28,  17  Am.  Rep.  295,  and  note  304. 
condition  of  these   places  and  things  316.  Clancey   v.    Byrne,   56   N.   Y. 

in  his  control  which  he  could  not  he  129,   15  Am.  Rep.  391,  and  note  398. 
charged  with   in  the  case  of   leasing  317.  Campbell    v.   Portland   Sugar 

outright  an  entire  dwelling  or  other  Co.,  62  Me.  552.     Syllabus  in  16  Am. 

building.     They  are  not   part  of  the  Rep.  503. 
demised  premises,   and  therefore  the 

077 


§  4-72      Remedies,  Parties,  Defeases  and  Damages. 

liable,  notwithstanding  tenants  in  occupation  of  the  premises  have 
covenanted  to  keep  them  in  repair,  where  ice  and  snow,  falling 
from  the  roof  of  the  building  so  nempi^d,  has  injured  a  pedestrian 
upon  the  highway,  it  not  appearing  that  the  roof  was  under  the 
tenants  control.318  But  in  a  later  case,  where  the  injury  was 
occasioned  by  like  causes,  the  owner  was  held  not  liable,  the  entire 
building  being  let  to  a  tenant  under  a  covenant  to  "  make  all  need- 
ful and  proper  repairs,  both  internal  and  external."  319  Again,  the 
lessor  is  not  liable  where  the  premises  are  to  be  kept  free  from 
nuisances  by  the  tenant  who  is  also  to  make  ordinary  repairs,  and 
the  nuisance  complained  of  consists  of  filthy  percolations  from  a 
vault,  and  the  lease  had  been  made  three  years  before  notice  of 
such  nuisance  was  received.320  Nor  does  the  right  of  the  owner  to 
enter  and  repair  render  him  liable  for  an  injury  to  an  occupant  of 
adjoining  premises,  sustained  by  reason  of  decayed  steps  in  the 
rear  of  the  leased  property,  such  steps  not  being  a  nuisance.321 

§  472.  Whether  owner,  occupant,  contractor  or  sub-contractor 
liable. — If  a  nuisance  necessarily  occurs!  in  the  ordinary  mode  of 
doing  work  the  owner  or  occupant  is  liable,  but  if  it  happened  by 
the  negligence  of  the  contractor  or  his  servants  the  contractor  alone 
is  liable.322    And  unless  the  source  of  the  injury  was  a  nuisance 

318.  Shipley  v.  Fifty  Associates,  called  a  '  Contractor,'  yet  that  word, 
106  Mass.  194,  8  Am.  Kep.  378;  Ship-  for  want  of  a  better  one,  has  come  to 
ley  v.  Fifty  Associates,  101  Mass.  be  used  with  special  reference  to  a 
251,  3  Am.  Rep.  346.  person  who,  in  the  pursuit  of  an  in- 

319.  Leonard  v.  Storer,  115  Mass.  dependent  business,  undertakes  to  do 
86,  15  Am.  Rep.  76,  and  note  78.  a  specific  piece  of  work  for  other  per- 

320.  Pope  v.  Boyle,  98  Mo.  527,  sons,  using  his  own  means  and  meth- 
11    S.   W.    1010.  ods,    without    submitting    himself    to 

321.  Sterger  v.  Van  Sicklen,  132  their  control  in  respect  of  all  its  de- 
N.  Y.  499,  44  N.  Y.  St.  R.  863,  30  N.  tails.  The  true  test  of  a  '  contrac- 
E.  987,  45  Alb.  L.  J.  494,  aff'g  28  N.  tor '  would  seem  to  be,  that  he 
Y.  St.  R.  627,  7  N.  Y.  Supp.  805.  renders   the   service  in  the  course  of 

322.  Chicago  v.  Robbins,  2  Black  an  independent  occupation,  repre- 
(67  U.  S.)  418.  See  Thomas  v.  Har-  senting  the  will  of  his  employer  only 
rington,  72  N.  H.  45,  54  Atl.  285.  as  to  the  result  of  his  work,  and  not 

"  Contractor  "  Defined.  "  Al-  as  to  the  means  by  which  it  is  accom- 
though  in  a  general  sense,  every  per-  plished.  If  he  never  serves  more 
son  who  enters  into  a  contract  may  be      than   one  person,  there  is  usually  a 

G79 


Remedies,  Parties,  Defenses  and  Damages.      §  472 


when  a  contractor  with  the  defendant  assumed  control,  and  it  was 
under  such  contractors  exclusive  control,  no  liability  attaches  to  the 
defendant  for  such  injury.323  And  where  work  is  so  performed 
by  a  contractor  for  his  principal  that  a  nuisance  exists  the  prin- 
cipal becomes  liable  to  others  for  subsequent  and  consequent  in- 
juries therefrom  where  he  accepts  the  work  in  such  a  condition.3-14 
So  if  one  employs  another  to  do  a  lawful  act  and  he  commits  a  pub- 
lic nuisance  in  doing  it  the  employer  is  not  responsible,  unless  a 
public  offense  is  necessarily  involved  in  doing  of  such  act.32°  But 
where  a  person  has  control  of  property  and  he  permits  a  public 
nuisance  to  be  erected  or  maintained  thereon,  even  though  it  is 
incidental  to  what  might  otherwise  be  a  lawful  work,  he  is  liable 
therefor.326  Again,  a  landlord  and  owner  of  premises  which  is  a 
tenement  house  and  who  has  contracted  to  have  certain  alt  rations 
made  therein  and  which  was  let  to  a  sub-contractor  is  held  not 
liable  for  injuries  sustained  by  an  infant  son  of  a  tenant  occa- 
sioned by  an  obstruction  in  a  hallway  of  the  premises  placed  there 


presumption  that  he  has  no  inde- 
pendent occupation;  but  this  pre- 
sumption is  not  conclusive.  .  .  . 
One  who  has  an  independent  busi- 
ness, and  generally  serves  only  in 
the  capacity  of  a  contractor,  may 
abandon  that  character  for  a  time, 
and  become  a  mere  servant  or  agent, 
and  this,  too,  without  doing  work 
of  a  different  nature  from  that  to 
which  he  is  accustomed.  If  he  sub- 
mits himself  to  the  direction  of  his 
employer  as  to  the  details  of  the 
work,  fulfilling  his  wishes,  not 
merely  as  to  the  result,  but  also  as 
to  the  means  by  which  that  result  is 
to  be  attained,  the  contractor  be- 
comes a  servant  in  respect  to  that 
work.  And  he  may  even  be  a  con- 
tractor as  to  part  of  his  service,  and 
a  servant  as  to  part."  Sherman  & 
Redfield  on  Negligence  (5th  Ed.)  §§ 
164,  165.  See  Green  v.  Soule,  145 
Cal.   96,    78   Pac.   337;    Parkhurst   v. 


Swift,  31  Ind.  App.  521,  68  N.  E. 
620;  Keys  v.  Second  Baptist  Church, 
99  Me.  308,  59  Atl.  446;  Karl  v. 
Juniata  County,  206  Pa.  633,  56  Atl. 
78. 

323.  Burbank  v.  Bethel  Steam 
Mill  Co.,  75  Me.  373,  46  Am.  Rep. 
400. 

324.  Vogel  v.  Mayor,  etc.,  of  New 
York,  92  N.  Y.  10,  44  Am.  Rep.  349, 
rev'g  24  Hun,  657. 

325.  Peachey  v.  Rowland,  13  C.  B. 
182,  17  Jur.  764,  22  L.  J.  C.  P.  81. 
See  Barnes  v.  Akroyd,  L.  R.  7.  Q.  B. 
474,  41  L.  J.  M.  C.  110,  26  L.  T.  692, 
20  W.  R.  671;  Queen  v.  Stephens,  7 
B.  &  S.  710,  12  Jur.  N.  S.  961,  L.  R. 
1  Q.  B.  702,  14  L.  T.  593,  14  W.  R. 
859,  10  Cox  C.  C.  340.  See  Salliotte 
v.  King  Bridge  Co.,  58  U.  S.  C.  C.  A. 
466,   122  Fed.  378. 

326.  Davie  v.  Levy,  39  La  Ann. 
551,  2  So.  395. 


G79 


§  472      Remedies,  Pakties,  Defenses  and  Damages. 

by  the  servants  of  the  sub-contractor,  where  such  owner  had  no 
control  over  the  contractor,  sub-contractor,  or  the  workmen  or 
either,  and  in  no  way  interfered  with  the  work  or  exercised  any 
direction  or  control  in  regard  thereto,  and  the  work  was  not  of 
itself  dangerous  to  the  occupants  of  rooms  in  the  house  or  to  those 
who  used  the  hallways  but  was  a  lawful  work,  and  the  contractor 
had  no  right  or  authority  or  power  to  interfere  with  the  hallway 
or  obstruct  it.  Nor  under  such  facts  is  the  landlord  chargeable 
for  a  nuisance  the  act  of  obstructing  the  hallway  not  being  that  of 
the  owner  or  of  his  servants  or  agent  but  that  of  a  third  party  and 
was  not  the  result  of  the  ordinary  method  of  doing  work  intrusted 
to  an  independent  sub-contractor,  and  was  caused  by  the  negligence 
of  the  contractor  or  his  servants  in  a  matter  purely  collateral  to 
the  contract.327 


327.  Boss  v.  Jarmulowsky,  81  N. 
Y.  App.  Div.  577,  81  N.  Y.  Supp.  400. 

Where  work  is  contracted  to 
be  done  'which  is  not  of  itself 
dangerous,  but  becomes  so  by  the 
negligence  of  the  contractor,  the  em- 
ployer is  not  liable  for  injuries  re- 
sulting therefrom;  but  if  the  work 
is  dangerous  of  itself,  unless  guarded 
and  the  employer  makes  no  provision 
in  his  contract  for  its  being  guarded, 
and  does  not  make  a  proper  effort 
to  guard  it  himself,  then  he  is  negli- 
gent, and  cannot  escape  liability  on 
the  ground  that  the  work  was  done 
by  a  contractor.  Wood  v.  The  Inde- 
pendent School  District  of  Mitchell, 
44   Iowa,   27,   30. 

Employer  not  liable  for  con- 
tractor's negligence.  Same  prin- 
ciple governs  negligence  of 
sub-contractor.  Shearman       & 

Redfield  on  Negligence  (5th  Ed.) 
§  168. 

Rule  as  to  liability  of  owner 
and  independent  contractor. 
Negligence.  In  the  following  ease 
a    judgment   for    the    plaintiff   belosv 


was  affirmed,  and  although  the  ques- 
tion of  negligence  is  that  involved, 
nevertheless,  the  principles  upon 
which  the  opinion  is  based  are  of 
importance  in  connection  with  the 
principles  underlying  the  decision 
given  in  the  text  to  which  this  note 
is  appended.  The  opinion  of  the 
court   is   as   follows: 

"  Haney,  Ch.  J.  This  action  was 
brought  to  recover  for  injuries 
caused  by  falling  into  an  open  ditch 
on  or  near  premises  in  the  city  of 
Sioux  Falls  owned  by  the  defendant 
and  occupied  by  a  tenant.  For  the 
purpose  of  connecting  her  tenement 
with  the  city  sewer,  defendant  em- 
ployed skilful  and  careful  contract- 
ors, under  an  agreement  whereby 
they  were  to  dig  the  ditch,  lay  the 
pipe,  make  connections,  furnish  all 
materials,  and  do  everything  neces- 
sary to  complete  the  work  for  $31. 
The  work  was  begun  Friday,  August 
4,  1899,  and  completed  on  the  follow- 
ing Monday.  The  ditch  extended 
from  near  the  centre  of  the  street, 
under    the   sidewalk,   and    across   de- 


GSO 


Kemedies,  Parties,  Defenses  and  Damages.       §  473 


§  473.  Immoral,  illegal  and  unlawful  use  of  property. — Who 
liable. — One  who  knows  that  his  property  is  used  as  a  place  for 
prostitution;  that  the  sole  business  of  its  occupants  is  such;  and 


fendant's    lot    to    the    house.      There 
was    no    fence   where    the    ditch    en- 
tered the  lot.     The  walk  was   on   a 
level   with    the   lawn,    and   two    feet 
from  the  line  of  the  lot.     The  acci- 
dent occurred  between  nine   and  ten 
o'clock    Sunday    evening.      The    pipe 
had    then    been   laid,    and    the    ditch 
filled  from  the  center  of  the  street  to 
the    walk,    but    was    open    from    the 
walk  to  the  house.     There   were   no 
lights  or   guards  to  give  warning  of 
the    danger.      In    passing    along    the 
walk  plaintiff  fell  into  the  ditch,  and 
was    injured.      The    jury    having    re- 
turned a  verdict  for  $2,000,  defend- 
ant appealed  from  the  judgment  en- 
tered    thereon.       The     jury     having 
found  under  proper  instructions  that 
ordinary   care   was   not    exercised   to 
protect   persons   passing  on  the  walk 
at  the  time  of  the  accident,  and  that 
the  plaintiff  was   not  guilty  of  con- 
tributory   negligence,   the    only   ques- 
tion demanding  attention  is  whether 
the  contractors,  who,  without  defend- 
ant's knowledge,  left  the  excavation 
unguarded,  are  alone  liable  for  plain- 
tiff's injuries.     It  is  disclosed  by  the 
evidence  that  the  work  was  done  by 
independent  contractors.    Respondent 
concedes  the  general  rule  to  be  that 
property  owners  are  not  responsible 
for  injuries  caused  by  the  negligence 
of    competent,    independent    contract- 
ors, but  contends  that  there  are  cer- 
tain   well    established    exceptions    to 
the  general  rule,  and  that  this  case 
falls    within    such    exceptions.      Ac- 
tions in  which  the  liability  of  prop- 
erty owners  for  the  negligence  of  in- 


dependent   contractors    has    been    in- 
volved are   so  numerous  that   an  ex- 
haustive  review   of    them   would   ex- 
tend this  opinion  beyond  all  reason- 
able   limits.      16    Am.    &    Eng.    Euc. 
Law   (2nd  Ed.)    pp.   187-210;   note  to 
Covington  &  Cincinnati  Bridge  Co.  v. 
Steinbrock    (Ohio)    76   Am.   St.   Rep. 
375    (s.  c.    61   Ohio   St.   215,   7   Am. 
Neg.  Rep.   154,  55  N.  E.  Rep.  618), 
The  issues  presented  by  this  appeal 
have    received    thoughtful    considera- 
tion.    While  the  legal  principles  in- 
volved in  this  class  of  litigation  are 
stated  by  the  authorities  with  meas- 
urable clearness   and  precision,  their 
proper    application    to    the    facts    of 
any    particular     ease     is    often    ex- 
tremely  difficult.      For   the   purposes 
of  this  appeal  the  general  rule,  with 
its     qualifications,     may     be     stated 
thus:     While  the  master  is  liable  for 
the    negligence    of    the    servant,    yet 
when  the  person  employed  is  engaged 
under  an  entire  contract  for  a  gross 
sum  in  an  independent  operation,  and 
is    not   subject   to   the   direction   and 
control  of  his  employer,  the  relation 
is    not    regarded   as    that   of   master 
and  servant,  but  as  that  of  contractor 
and  contractee;  and  in  such  case  the 
general  rule  is  that  the  negligence  of 
the     contracting     party     cannot     be 
charged    upon     him     for    whom    the 
work  is  to  be  done;   and  this  rule  is 
applicable,  even  where   the   owner  of 
the  land  is  the  person  who  hires  the 
contractor,  and  for  whose  benefit  the 
work  is  done.     If,   however,  the  per- 
formance of  the  work  will  necessarily 
bring  wrongful  consequences  to  pass 


681 


§  473      Remedies,  Parties,  Defenses  and  Damages. 


who  thus  knowing  continues  from  month  to  month  to  permit  such 
occupancy  must  he  held  to  rent  such  property  to  "  be  used  "  as 
a  place  of  prostitution,  and  is  responsible  in  damages  to  an  ad- 


unless  guarded  against,  the  law  may 
hold    the    employer    answerable    for 
negligence  in  the  performance  of  the 
work.     Boomer  v.  Wilbur,   176  Mass. 
482,  8  Am.  Neg.  Rep.  246,  57  N.  E. 
Rep.    1004.     If   the  work   contracted 
for  is  of  such  a  character  that  it  is 
intrinsically  dangerous,  or  will  prob- 
ably   result   in   injury   to    third   per- 
sons, one  contracting  to  have  it  done 
is  liable  for  such  injuries  though  the 
injury    may   be    avoided    if   the    eon- 
tractor  take  proper  precautions,  there 
being   a   distinction    between    such   a 
case  and  one  in  which  the  work  con- 
tracted for  is  such  that,  if  properly 
done,   no   injurious   consequences   can 
arise.     As  was   stated  by    Cockburn, 
C.  J.,  in  Bowe  v.  Peate,  1  Q.  B.  Div. 
321:     'There  is  an  obvious  difference 
between   committing  work   to   a   con- 
tractor to  be  executed,   from   which, 
if  properly  done,  no  injurious  conse- 
quences can  arise,  and   handing  over 
to  him  work  to  be  done  from  which 
mischievous    consequences    will    arise 
unless       preventive       measures       are 
adopted.      While   it   may   be   just   to 
hold  the  party  authorizing  the  work 
in  the  former  case  exempt  from  lia- 
bility   from    injury    resulting    from 
negligence  which  he  had  no  reasoii  to 
anticipate,    there    is,    on    the    other 
hand,   good   ground    for    holding   him 
liable    for   injury   caused   by    an    act 
certain  to  be  attended  with  injurious 
consequences     if     such     consequences 
are  not  in  fact  prevented,  no  matter 
through   whose   default   the   omission 
to   take   the  necessary   measures    for 
such  prevention  may  arise.'     16  Am. 


&  Eng.  Enc.  Law    (2nd  Ed.)    p.  201. 
The  contract  in  the  case  at  bar  con- 
templated   an    excavation    in   one    of 
the   principal   streets    of   the   city   of 
Sioux    Falls.      The   work    contracted 
for  could  not  be  done  without  creat- 
ing a   condition   in   the   public   thor- 
oughfare    from     which     mischievous 
consequences  might  reasonably  be  ex- 
pected    to     arise     unless     preventive 
measures  were  adopted.     An  excava- 
tion for  the  purpose  of  constructing 
a  sewer  may  not  be  unlawful,  but  it 
is    certainly    intrinsically    dangerous, 
and,   unless   properly  guarded,   liable 
to     cause     personal     injuries.       The 
nature    of    the   work    demands    more 
than  its  proper  performance.  Digging 
the   ditch    and    laying   the    pipe    are 
not     enough.       Lights,     barriers,     or 
other  safeguards  are  required  during 
the  progress  of  the  work  to   protect 
persons    from   such   accidents    as   the 
one    resulting    in    plaintiff's    injury. 
Where  the  work  contemplated  by  the 
contract  is  of  such  a  nature  that  pub- 
lic   safety    requires    something    more 
to  be   done   than  the   mere   construc- 
tion  of    the    improvement,    we    think 
the   owner    of    the    property    owes    a 
duty  to  the  public  to  see  that  proper 
safeguards  are  taken,  and  that,  where 
such    precautions   are    not   taken,    he 
should  not  escape  liability  for  result- 
ing   injuries."      McCarrier   v.   Hollis- 
ter,  15  S.  Dak.  366,  89  N.  W.  862,  11 
Am.  Neg.  Rep.  641.     See,  also,  note, 
id.  641. 

When  owner  or  employer 
liable  to  third  persons — Indepen- 
dent contractor.     See  generally  the 


682 


Remedies,  Parties,  Defenses  axd  Damages. 


473 


jacent  proprietor  residing  with  his  family  on  such  adjoining  prop- 
erty, and  he  may  be  enjoined  from  permitting  such  occupancy  to 
continue,  a  landlord  should  at  least  use  reasonable  care  and  dili- 
gence in  ascertaining  the  use  to  which  his  property  is  applied, 
having  due  care  and  regard  for  his  neighbors'  rights.328     So  one 
who  hires  lodging  rooms  in  a  dwelling  house  and  uses  them  for 
immoral  purposes  is  liable;  for  a  person  who  wrongfully  injures 
the  good  name  of  a  boarding  house,  lodging  house,  hotel  or  other 
place  of  entertainment  is  responsible  in  damages.329     In  a  Maine 
decision  it  is  held  that  under  an  indictment  for  aiding  and  main- 
taining a  nuisance  contrary  to  the  statute  in  permitting  a  tenement 
under  defendant's  control  to  be  used  for  illegal  purposes  it  must 
appear  in  order  to  constitute  the  offense  that  the  tenement  was 
either  let  for  the  illegal  use  or  that  such  use  was  permitted;  but 
the  mere  fact  that  the  defendant  has  control  of  the  tenement  does 


following  cases:  Adams  Express  Co. 
v.  Schofield,  23  Ky.  L.  Rep.  1120,  64 
S.  W.  903;  Keys  v.  Second  Baptist 
Church,  99  Me.  308,  59  Atl.  446; 
Corrigan  v.  Elsinger,  81  Minn.  42,  b3 
N.  W.  492 ;  Omaha  Bridge  &  Terminal 
Co.  v.  Hargadine,  5  Neb.  (unofficial) 
418,  98  N.  W.  1071;  Johnston  v. 
Phoenix  Bridge  Co.,  169  N.  Y.  581,  62 
N.  E.  1096;  aff'g  44  N.  Y.  App.  Div. 
581,  60  N.  Y.  Supp.  947;  Davis  v. 
Summerfield,  133  N.  C.  325,  63  L.  R. 
A.  492,  45  S.  E.  654,  42  S.  E.  813; 
Macdonald  v.  O'Reilly,  45  Oreg.  589. 
78  Pac.  753;  James  McNeil  &  Bros. 
Co.  v.  Crucible  Steel  Co.,  207  Pa.  493, 
56  Atl.  1067 ;  Ziebell  v.  Eclipse  Lum- 
ber Co.,  33  Wash.  591,  74  Pac.  680. 
See  Nelson  v.  Young,  180  N.  Y.  523, 
72  N.  E.  1146,  aff'g  91  N.  Y.  App. 
Div.  457,  87  N.  Y.  Supp.  69. 

When  owner  or  employer  not 
liable  to  third  persons— Indepen- 
dent contractor.  See  generally  the 
following  cases:  Chattahoochee  &  G. 
R.  Co.  v.  Behrman,  136  Ala.  508,  35 


So.  132;  Francis  v.  Johnson  (Iowa), 
101  N.  W.  878;  Jahns,  Amd'r,  v.  Wm. 
H.  McKnight  &  Co.,  25  Ky.  L.  Rep. 
1758,  78  S.  W.  862;  Strauss  v.  Louis- 
ville (Ky.),  55  S.  W.  1075;  Wilbur 
v.  White,  98  Me.  191,  56  Atl.  657; 
Pearl  v.  West  End  St.  Ry.  Co.,  176 
Mass.  177,  49  L.  R.  A.  826,  57  N.  E. 
339;  Lenderink  v.  Village  of  Rock- 
ford,  135  Mich.  531,  98  N.  W.  4,  10 
Det.  L.  N.  832 ;  Overseer  of  Highways, 
etc.,  v.  Pelton,  129  Mich.  31,  87  N. 
W.  1029,  8  Det.  L.  N.  842,  under 
Comp.  L.  1897,  4160;  Aldritt  v.  Gil- 
lette-Herzog  Mfg.  Co.,  85  Minn.  206, 
88  N.  W.  741;  Kueckel  v.  Ryder,  170 
N.  Y.  562,  62  N.  E.  1096,  aff'g  54  N. 
Y.  App.  Div.  252,  66  N.  Y.  Supp.  522; 
Korn  v.  Weir,  88  N.  Y.  Supp.  976; 
Bryson  v.  Philadelphia  Brewing  Co., 
209  Pa,  40,  57  Atl.  1105. 

328.  Marsan    v.    French,    61    Tex. 
173,  48  Am.  Rep.  272. 

329.  Sullivan  v.  Waterman,  20  R. 
I.  372,  39  L.  R.  A.  773,  39  Atl.  243. 


683 


§  473      Remedies,  Parties,  Defenses  and  Damages. 

not  make  him  liable  he  must  be  proved  to  consent  to  the  illegal  user 
and  if  such  use  is  known  to  him  and  he  takes  no  measures  to  pre- 
vent it  his  inaction  may  be  evidence  of  his  consent  or  permission. 
This  rule  applies  to  both  the  owner  and  the  one  authorized  to  let 
the  tenement.330    In  the  case  of  liquor  nuisances  the  following  per- 
sons have  been  held  liable :     The  owner  of  the  building  ;331  all  per- 
sons interested  as  owners ;  332  the  owner  and  lessee  of  the  building 
and  the  keeper  with  knowledge  of  the  use  ;333  a  non-resident  owner 
with  knowledge,  who  maintains  the  place  by  an  agent  ;334  the  owner 
and  the  premises;335  one  in  control  of  the  premises  and  his  ser- 
vants ;336  one  who  having  knowledge  permits  another  to  keep  liquors 
in  his  house  for  illegal  sales  f1  the  owner  who  assents  to  the  use 
of  his  tenement  for  unlawful  sales;338  the  owner  or  keeper;339  a 
dramshop  keeper  or  his  agent  or  keeper  with  knowledge  and  intent 
to  illegally  sell  ;340  one  who  assists  as  keeper,  though  he  has  not  sole 
custody  of  the  place;341  one  who  carries  on  a  tenement  for  illegal 
sales  ;342  a  husband  as  keeper,  where  he  owns,  controls  or  occupies 
a  house  where  his  wife  with  his  knowledge  and  permission  or  with- 
out his  objection  makes  illegal  sales  ;343  a  lessee  ;344  an  express  com- 
pany ;345  and  a  bank.346     But  a  mortgagee  without  control,  possess- 
ion or  right  to  possession  is  not  liable  as  a  person  interested  under 
the  statute.347    If  a  statute  makes  the  "  owners,  lessees,  occupants, 

330.  State  v.  Frazier,  73  Me.  95,  339.  State  v.  Lewis,  63  Kan.  265, 
under  Rev.  S.  C.   17   §  4.  65  Pac.  258. 

331.  State  v.  Price,  92  Iowa,  181,  340.  Nicholson   v.    People,   29   111. 
60  N.  W.  514.  App.  57- 

332.  Shear  v.  Green,  73  Iowa  688,  341.  State  v.   Lord,   8  Kan.   App. 
36  N.  W.  642.  257,  55  Pac.  503. 

333.  Bell    v.    Glaseker,    82    Iowa,  342.  Commonwealth       v.       Burns, 
736,  47  N.  W.  1042.  167  Mass.  374.  45  N.  E.  755. 

334.  State    v   Collins,    74   Vt.    43,  343.  Commonwealth      v.       Walsh. 
52  Atl.  69.  165  Mass-  62>  42  N-  E-  50°- 

335.  Carter   v.   Bartel,    110    Iowa,  344.  Tron  v.  Lewis,   31   Ind.  App. 
211,  81  N.  W.  462.  178,  66  N.  E.  490. 

336.  State  v.  Moore,  49  S.  C.  438,  345.  Dosh  v.  United   States   Exp. 
27  S.  E.  454.  Co.    (Iowa),  93  N.  W.  571. 

337.  Commonwealth  v.  Lynch,  160  346.  State    v.    Snyder,    108    Iowa 
Mass.  298,  35  N.  E.  854.  205,  78  N.  W.  807. 

338.  Commonwealth  v.  Hayes,  167  347.  State  v.  Massey,   72  Vt.  210, 
Mass.    176,  45   N.   E.   82.  47  Atl.   834.      See  further   as  to   lia- 

CS4. 


Remedies,  Parties,  Defenses  axd  Damages.       §  474 

managers  or  agents  of  any  building,  establishment  or  premises 
from  which  dense  smoke  "  is  emitted  guilty  of  a  misdeamor,  it  is 
sufficient  in  an  indictment  against  a  "  manager  "  of  a  "  building," 
etc.,  thus  emitting  dense  smoke,  etc.,  to  allege  and  prove  that  he 
is  a  "  manager  "  of  such  building  and  if  he  is  he  is  liable  or  respon- 
sible for  having  permitted  the  nuisance.  It  is  unnecessary  to  either 
allege  or  prove  affirmatively  whether  the  concern  of  which  he  is  a 
manager  is  a  corporation  or  partnership.348 

§  474.  Liability  of  persons  jointly  and  severally  contributing. 
— In  case  of  a  public  nuisance  all  wrongdoers  may  be  sued  jointly 
or  severally  in  a  suit  to  abate  such  nuisance.349  And  where  the 
acts  of  several  individuals  constitute  a  public  nuisance  they  are 
jointly  and  severally  liable  at  the  suit  of  the  parties  specially 
damaged.350  If  damages  are  sustained  by  the  erection  or  mainte- 
nance of  a  nuisance  all  persons  who  participate  therein  are  held 
liable  therefor.351    A  distinction  exists,  however,  between  the  joint 


bility  for  liquor  nuisance  State  v. 
Frahm,  109  Iowa,  101,  80  N.  W.  209; 
Steyer  v.  McCauley,  102  Iowa,  105,  71 
N.  W.  194;  State  v.  Viers,  82  Iowa, 
397,  48  N.  W.  732;  State  v.  Turner, 
63  Kan.  714,  66  Pac.  1008;  State  v. 
Collins  (N.  H.),  44  Atl.  495;  State  v. 
Donovan,  10  N.  D.  610,  88  N.  W.  717; 
§§  399-401  herein. 

348.  State  v.  Eyermann  (Mo.  App. 
1905),  90  S.  W.  1168;  Laws  1901,  p. 
73,   §  1. 

349.  People  v.  Gold  Run  Ditch  & 
Mining  Co.,  66  Cal.  138,  56  Am.  Rep. 
80,  4  Pac.  1152;  Valparaiso  v.  Mof- 
fit,  12  Ind.  App.  250,  39  N.  E.  909. 
See  Woodruff  v.  North  Bloorafield 
Gravel  Min.  Co.,  8  Sawy.(U.  S.  C.  C.) 
628;  Bloomhuff  v.  State,  8  Blackf. 
(Ind.)  205;  Simmons  v.  Everson,  124 
N.  Y.  319,  36  N.  Y.  St.  R.  265,  26  N. 
E.  911,  21  Am.  St.  R.  676,  aff'g  32  N. 
Y.  St.  R.  1134;  King  v.  Trafford,  1  B. 
&  Ad.  874. 


350.  West  Muncie  Strawboard  Co. 
v.  Slack,  164  Ind.  21,  72  N.  E.  879. 

351'.  Prussak  v.  Hutton,  30  N.  \. 
App.  Div.  66,  51  N.  Y.  Supp.  761; 
Sullivan  v.  McManus,  45  N.  Y.  Supp. 
1079,  19  N.  Y.  App.  Div.  167;  Com- 
minge  v.  Stevenson,  76  Tex.  642,  13 
S.  W.  556.  See  Olmstead  v.  Rich,  53 
Hun,  638,  6  N.  Y.  Supp,  826;  An- 
derson v.  Dickie,  26  How.,  Pr.  (N. 
Y.)  105;  Graver  v.  Dodson  Coal  Co., 
20  Pa.  Co.  Ct.  529;  Rogers  v.  Stewart, 
5  Vt.  215,  26  Am.  Dec.  296;  Wilson 
v.  West  &  Slade  Mill  Co.,  28  Wash. 
312,  68  Pac.  716. 

Parties  out  of  jurisdiction 
need  not  be  made  defendants 
although  nuisance  has  been  erected 
and  maintained  by  several  Missis- 
sippi &  Mo.  R.  R.  Co.  v.  Ward,  2 
Black  (67  U.  S.)   485. 


685 


§  474      Remedies,  Parties,  Defenses  and  Damages. 

acts  of  several  parties  and  the  several  acts  of  separate  parties 
acting  independently  of  each  other  as  in  the  former  case  each  is 
liable  for  the  entire  damage352  while  in  the  latter  case  each  person 
is  liable  for  the  damage  occasioned  by  his  acts  to  the  extent  of  the 
separate  injury  committed  by  him,  or  for  his  proportion  only  of 
the  damage  if  ascertainable,  and  he  is  not  liable  for  the  damage 
caused  by  the  others,353  and  in  order  to  hold  one  of  two  parties 
responsible  for  the  entire  damage  caused  by  the  construction  and 
maintenance  of  a  nuisance,  a  concert  of  action  must  be  made  to 
appear.354  So  several  separate  proprietors  of  disorderly  houses  are 
not  liable  jointly,355  although  two  persons  who,  acting  separately 
on  different  premises,  produce  through  mechanical  organs  an 
aggregate  noise  constituting  a  nuisance  are  jointly  liable  in  an 
equitable  suit  to  enjoin.356  If  the  injury  or  nuisance  complained 
of  arises  from  the  individual  acts  of  different  persons ;  and  such 
nuisance  is  merely  incidental  to  and  the  result  of  such  acts;  and 
the  injury  is  not  caused  by  the  joint  acts  of  defendant  and  any 
other  person,  the  defendant  in  such  case  is  liable  only  for  what- 
ever damage  it  has  caused  by  its  own  wrongful  acts  and  for  none 
other.  Defendant  cannot  be  held  responsible  for  the  entire  injury 
where  it  only  contributes  thereto.  The  full  damage  should  be 
apportioned  among  all  the  wrongdoers  and  the  difficulty  in  determ- 
ining what  part  of  the  damage  has  been  occasioned  by  acts  of  the 
defendant  constitutes  no  objection  to  granting  relief.307  So  in 
case  of  a  nuisance  upon  premises  from  the  sewage  of  parties  at 
a  distance  though  the  statute  speaks  only  of  one  individual,  yet  if 

352.  Sloggy  v.  Dilworth,  38  Minn.  Chipman  v.  Palmer,  77  N.  Y.  51,  33 
179,  36  N.  W.  451,  8  Am.  St.  R.  856;  Am.  Rep.  566,  aff'g  9  Hun,  517. 
Chipman  v.  Palmer,  77  N.  Y.  51,  33  354.  Bowman    v.    Humphrey,    124 
Am.  Rep.  566,  aff'g  9  Hun,  517.    Ex-  Iowa  744,  100  N.  W.  854. 

amine  Cabulski  v.  Hutton,  62  N.  Y.  355.  Northern      P.      R.      Co.      v. 

Supp.   166,   47  N.   Y.  App.   Div.    107.       Whalen,    3    Wash.    Ty.   452,    17    Pac. 

353.  Loughran  v.   Des   Moines,   72       890. 

Iowa,   382,  34  N.  W.   172;   Sloggy  v.  356.  Lambton   v.    Mellish    (1894), 

Dilworth,    38   Minn.    179,    36    N.    W.       3   Ch.   163. 

451,  8  Am.   St.  Rep.  656;   Martinow-  357.  Watson       v.       Colusa-Parrot 

sky    v.    Hannibal,    8    Mo.    App.    70;       Mining     &     Smelting     Co.      (Mont., 

1905),  79  Pac.   14. 


6S6 


Remedies,  Parties,  Defenses  axd  Damages.       §  475 

each  man's  contribution  can  be  ascertained  an  order  can  be  made 
upon  him  to  abate  it.358  But  parties  who  severally  contribute  to  the 
discharge  of  mill  refuse  into  a  stream  will  be  liable  and  may  be 
sued  in  equity  as  the  remedy  at  law  is  inadequate.  All  of  the  de- 
fendants may  be  enjoined  and  if  the  question  of  damages  is  raised 
a  reference  may  be  had  to  determine  the  amount  for  which  each  is 
liable.359  Again,  a  proprietor  of  a  mill,  who  cuts  a  canal  across 
a  public  road,  whereby  the  passage  along  the  highway  is  obstructed, 
and  those  who  are  in  possession  of  the  mill  claiming  under  him 
and  using  the  canal,  are  liable  to  an  indictment  for  such  obstruc- 
tion, the  one  for  creating  and  the  others  for  continuing  the 
nuisance.  But,  if  a  bridge  is  erected  over  the  canal,  neither  is 
indictable,  simply  for  suffering  the  bridge  to  be  out  of  repair.300 

§  475.  Other  persons  who  are  and  are  not  liable — Instances. — 
In  addition  to  the  persons  specifically  enumerated  under  the  pre- 
ceding sections  as  liable  for  a  nuisance  the  following  persons  have 
also  been  held  responsible  or  proper  parties  defendants;  a  person 
operating  an  electric  light  plant  ;361  a  common  scold  ;362  the  erector 
of  a  milldam  when  it  is  a  public  nuisance;363  a  person  causing  an 
obstruction  to  navigation  ;364  a  manager  of  another's  business  ;36a  the 

358.  Guardians  of  Hendon  Union  363.  State  v.  Phipps,  4  Ind.  515. 
v.  Bowles,  20  L.  T.  N.  S.  609.  See  364.  South  Carolina  Steamboat 
Learned  v.  Castle,  78  Cal.  454,  21  Co.  v.  Wilmington,  C.  &  A.  R.  Co., 
Pac.  11,  18  Pac.  872.  46  S.  C.  327,  24  S.  E.  337. 

359.  Warren  v.  Parkhurst,  92  N.  365.  Terry  v.  State,  24  Ohio  Cir. 
Y.  Supp.  725,  45  Misc.  466.  Ct.  R.  111. 

Joint     liability     of     city     and  Right    to    sue    agent    of    State, 

citizens      connecting      houses      with  injunction.      See  Holland's  Assignee  v. 

sewage    system.      See    Carmichael    v.  Cincinnati    Dessicating    Co.,    97    Ky. 

Texarkana,   94    Fed.   561;    Sellick   v.  454,  30  S.  W.   971,  53  Am.  St.  Rep. 

Hall,  47  Conn.  260,  274.  414,  28  L.  R.  A.  394. 

360.  State    v.    Yarrell,    34    N.    C.  Criminal  or  penal  liability  of 
(12  Ired.  L.)    130.  servant,     agent     or    partner     for 

361'.  Hyde    Park    Thompson-Hous-  nuisance.     See  note  41  L.  R.  A.  665. 

ton  Elec.  Light  Co.  v.  Porter,  167  111.  Husband    not    liable    as    agent 

276,  47  N.  E.  206,  aff'g  64  111.  App.  for  wife.     See  People  v.  Crounse,  51 

152'  Hun,  489,  21  N.  Y.  St.  R.  687. 

362.  Commonwealth   v.   Mohn,   52 
Pa.  St.  243,  91  Am.  Dec.  153. 

687 


§  475      Remedies,  Parties,  Defenses  and  Damages. 

purchaser  and  proprietor  of  an  estate  in  land  to  which  a  ferry  is  ap- 
purtenant ;366  so  the  erector  of  a  nuisance  and  the  purchaser  may  be 
joined,367  and  owners  of  distinct  interests  or  separate  portions  in 
severalty  may  also  be  joined  ;368  so  one  creating  a  nuisance  over  a 
right  of  way  is  liable  even  though  he  has  no  interest  in  the  land  ;369 
for  it  is  not  necessary  in  an  action  to  abate  a  nuisance  and  for 
damages  that  a  person  charged  with  erecting  the  nuisance  should 
be  the  owner  of  the  freehold,  or  any  part  of  it,  upon  which  the 
nuisance  is  erected.  It  is  sufficient  if  he  is  a  party  to  the  erection 
of  the  nuisance.370  Again,  a  person  who  with  full  knowledge  of  the 
existence  of  a  nuisance  upon  real  estate,  for  which  the  owner  would 
be  liable,  purchases  the  reversionary  interest  in  such  real  estate, 
and  receives  the  rents  thereof  from  a  tenant  in  possession,  thereby 
voluntarily  assumes  the  responsibility  of  such  nuisance  and  be- 
comes liable  for  the  damages  sustained  in  consequence  thereof  sub- 
sequent to  his  purchase.371  So  a  licensee  who  exercises  his  limited 
right  to  excess  so  as  to  produce  a  nuisance  is  liable  to  have  such 
nuisance  abated  to  the  extent  of  the  excess,  but  if  it  cannot  be 
abated  without  obstructing  the  right  altogether,  the  exercise  of 
the  right  may  be  stopped  entirely  until  means  have  been  taken  to 
reduce  it  within  its  proper  limits372  and  an  action  lies  at  common 
law  for  watching  and  besetting  workmen.3'3  But  a  singer  who  con- 
scientiously takes  part  in  religious  services  without  intending  to 
disturb  the  congregation  by  his  singing  is  not  indictable,374  and 
it  has  recently  been  decided  by  the  court  of  special  sessions  in  the 
city  of  New  York  that  a  theatrical  manager  was  not  liable  for 

366.  State  v.  Willis,  44  N.  C.  223.  371.  Pierce  v.   German  Savings  & 

367.  Brown  v.  Woodworth,  5  Loan  Soc,  72  Cal.  180,  13  Pac.  478. 
Barb.   (N.  Y.)   550.  372.  Crossland      v.      Borough      of 

368.  Kingsbury  v.  Flavers,  65  Pottsville,  126  Pa.  511,  18  Atl.  15,  24 
Ala.  479,  39  Am.  Rep.  14.  Injunc-  W.  X.  C.  328,  46  Phila.  Leg.  Int. 
tion    was,    however,    refused    in   this  352,  20  Pitts.  L.  J.  N.  S   15. 

case.  373.  Lyons     v.     Wilkins     (1899), 

369.  Harden  v.  Sinclaire,  115  Cal.  1  Ch.  255,  68  L.  J.  Ch.  146,  63  J.  P. 
460,  47  Pac.  363,  Cal.  Code  Civ.  Proc.  339,  79  Law  T.  N.  S.  709,  47  W.  R. 
§  731.  291. 

370.  Dorman  v.  Ames,  12  Minn.  374.  State  v.  Linkhaw,  69  N.  C. 
451.  214,  12  Am.  Rep.  645. 


ess 


Remedies,  Parties,  Defenses  axd  Damages.       §  475 
the  presentation   of  the   play   entitled    "  Mrs.   Warren's  Profes- 


sion.' 


374a.  People  v.  Daly  and  Gum- 
pertz,  Vol.  XXXV,  No.  83,  New  York 
Law  Journal,  p.  1199: 

"  Olmsted,  J. — The  information 
herein  charges  the  defendants  with 
committing  a  public  nuisance  under 
the  provisions  of  section  385  of  the 
Penal  Code,  in  that  on  the  30th  day 
of  October,  1905,  in  the  county  of  New 
York,  they  offended  public  decency  by 
the  presentation  of  a  theatrical  per- 
formance— a  play  entitled  '  Mrs.  War- 
ren's Profession.'  *  *  *  The  prin- 
ciple of  law  which  controls  in  this 
State  as  a  test  of  criminality  in  an 
action  such  as  this,  was  laid  down  by 
Mr.  Justice  Andrews  in  the  People, 
etc.,  v  Muller  ( 122  N.  Y.  408 ) .  The 
test  by  this  rule  is  whether  the  mat- 
ter complained  of  '  is  naturally  calcu- 
lated to  excite  in  a  spectator  impure 
imagination,  and  whether  the  other 
incidents  and  qualities,  however  at- 
tractive, are  merely  accessory  to  this 
as  the  primary  or  main  purpose  of 
the  representation.' 

"  It  is  true  that  the  action  in  which 
this  rule  was  started  was  one  prose- 
cuted by  indictment  under  section  317 
of  the  Penal  Code,  and  the  obscene 
matter  complained  of  consisted  of 
photographs.  The  principle,  however, 
was  adopted  by  the  Appellate  Division 
of  this  department,  and  was  cited 
with  approval  by  Mr.  Justice  Barrett 
in  his  opinion  affirming  the  conviction 
by  this  court  of  a  defendant  under 
section  385  of  the  Penal  Code  (Peo- 
ple, etc.,  v.  Doris,  14  App.  Div.  117). 
This  was  a  prosecution  against  a 
theatre  manager  for  presenting  an  in- 
decent   theatrical    performance.     The 


rule  is  common  in  its  application  to 
actions  under  both  sections  of  the 
Code,  one  of  which  penalizes  public 
nuisances  generally,  and  the  other 
specific  public  nuisances.  Mr.  Justice 
Daniels,  writing  the  opinion  of  the 
General  Term  of  the  Supreme  Court 
in  People,  etc.,  v.  Muller  (32  Hun, 
209),  says:  'The  question  in  all 
cases  must  be  what  is  the  impression 
produced  upon  the  mind  by  perusing 
or  observing  the  writing  or  pictures 
referred  to  in  the  indictment.'  In 
other  words,  is  the  suggestion  of  the 
play  in  its  essence  moral  or  immoral? 
Is  the  single  idea  or  purpose  the  in- 
culcation of  a  moral  or  an  immoral 
lesson?  In  no  scene  of  the  play  is 
Mrs.  Warren's  '  profession  '  presented 
as  a  stage  picture.  It  is  merely  re- 
ferred to,  and  that  in  the  most  indi- 
rect way.  The  prostitute  does  not 
flaunt  herself  upon  the  stage  The 
penalty  which  the  mother  pays  in  the 
loss  of  the  child,  for  whom  she  ex- 
hibits some  motherly  love  at  least,  is 
not  one  which  would  be  likely  to  at- 
tract her  sex  to  her  mode  of  life.  If 
virtue  does  not  receive  its  usual  re- 
ward in  this  play,  vice,  at  least,  is 
presented  in  an  odious  light,  and  its 
votaries  are  punished.  The  attack  on 
social  conditions  is  one  which  might 
result  in  effecting  some  needed  re- 
forms therein.  The  court  cannot  re- 
frain from  suggesting,  however,  that 
the  reforming  influence  of  the  play  in 
this  regard  is  minimized  by  the 
method  of  the  attack. 

"  While  the  court  may  hold  decided 
opinions  regarding  the  fitness  of  this 
play  as   a  stage  production,   when  it 


0S9 


Remedies,  Parties,  Defenses  and  Damages.       §  476 


SUBDIVISION  III. 

DEFENSES. 

Section  476.  Proximate    cause — Acts    of    third    parties — Other     sources    or 
causes — Others  contributing. 

477.  Pollution  of  waters  from  other  sources. 

478.  Other  or  similar  nuisances — Similar  acts  by  others. 

479.  Where  plaintiff  contributes  to,  or  maintains,  similar  nuisance. 

480.  Pollution  of  waters  by  plaintiff. 

481.  Negligence — Contributory  negligence — Due  care. 

482.  That  water  potable  by  cattle  and  inhabited  by  fish  no  defense 

for  pollution. 

483.  Benefit  to  public;  balancing  conveniences. 

484.  Same  subject. 

485.  Acquiescence,     knowledge     or     failure     to     complain — Laches — 

Estoppel. 

486.  Other  instances  of  defenses  generally. 

487.  Same  subject. 

§  476.  Proximate  cause. — Acts  of  third  parties — Other  sources 
or  causes — Others  contributing. — The  injurious  consequences  or 
nuisance  complained  of  should  be  the  natural,  direct  and  proxi- 
mate cause  of  defendant's  acts  to  render  him  liable  for  maintain- 
ing a  public  nuisance,1  for  it  is  a  good  defense  that  the  tortious  act 
was  committed  by  others  or  third  parties;  and  if  the  injurious  re- 
sults flow  from  acts  done  by  others  operating  on  the  alleged  nuis- 
ancer's acts  as  to  produce  such  results,  then  he  is  not  liable.2  Nor  is 

comes  to  consider  the  question  of  the  an  attack  on  certain  social  conditions- 
criminality  of  the  acts  of  these  de-  relating  to  the  employment  of  women, 
fendants  in  publicly  producing  it,  it  which,  the  dramatist  believes,  as  do 
must  make  application  of  the  princi-  many  others  with  him,  should  be  re- 
ple  of  law  laid  down  by  the  Court  of  formed.  Tried  by  this  rule,  the  play 
Appeals  as  the  test  of  criminality.  does  not  come  within  the  inhibition 
Making  such  application  in  the  case  of  the  statute,  and  the  defendants  are- 
at  bar,  it  appears  that  instead  of  ex-  acquitted.  Wyatt,  J.,  concurs.  Me- 
riting impure  imagination  in  the  Avoy,  J.,  dissents." 
mind  of  the  spectator,  that  which  is  1.  State  v.  Holman,  104  N.  C. 
really  excited  is  disgust;  that  the  un-  861,  10  S.  E.  758;  State  v.  Rankin, 
lovely,  the  repellant,  the  disgusting  in  3  S.  C.  438,  16  Am.  Rep.  737. 
the  play,  are  merely  accessories  to  the  2.  Dieter  v.  Estill,  95  Ga.  370,  22 
main  purpose  of  the  drama,  which  is  S.   E.    622 ;    Brimberry    v.    Savannah, 

GOO 


Remedies,  Parties,  Defenses  and  Damages.      §  477 

he  liable  for  nuisances  resulting  from  other  sources3  over  which  he 
has  no  control,4  although  he  may  be  liable  when  he  consents  to,  or 
authorizes  the  erection  of  the  nuisance  by  such  third  party.5  It  is 
held,  however,  that  the  owner  of  property  may  be  primarily  liable 
and  have  his  recovery  over  from  the  third  party  who  has  created 
the  nuisance  without  his  consent.6  But  if  the  structure  alleged  to 
occasion  the  nuisance  is  the  actual  and  principal  factor  in  causing 
it,  the  fact  that  other  causes  combined  to  produce  the  consequences 
does  not  prevent  his  being  held  liable;7  and  it  is  no  defense  that 
others  contribute  to  the  nuisance.8 

§  477.  Pollution  of  waters  from  other  sources. —  As  between 
independent  wrong  doers  there  is  no  contribution  and  it  will  not 
avail  as  a  defense  that  others  with  whom  the  complainant,  in  an 
injunction  bill  to  restrain  a  nuisance,  has  no  concern,  have  con- 
tributed to  cause  the  pollution  of  the  waters  against  which  relief 
is  sought.9  So  the  fact  that  waters  are  impure  and  polluted  from 
other  and  various  sources  or  by  other  parties  or  causes  does*  not 
constitute  a  defense  by  persons  adding  to  such  impurity,  nor  pre- 
clude relief  from  further  pollution;  for  the  fact  that  others  have 
contaminated  a  wrater  course  does  not  entitle  a  person  to  add 
thereto.10  So  where  the  upper  owner  contributes  to  the  pollution  of 

P.  &  W.  R.  Co.  78  Ga.  641,  3  S.  E.  8.  Seacord  v.  People,   121  111.  623, 

274;  State  v.  Rankin,  3  S.  C.  438;   16  13  N.  E.   194,  aff'g  22  111.  App.  279; 

Am.  Rep.  737.  Evans  v.  Wilmington  &  W.  R.  Co.,  96 

3.  Farley  v.  Gate  City  Gaslight  N.  C.  45,  1  S.  E.  529;  City  of  New- 
Co.,   105  Ga.  323,  31   S.  E.   193.  castle  v.  Raney,  6  Pa.  Co.  Ct.  R.  87. 

4.  Warren  v.  Hunter,  1  Phila.  414.  See  id.   130  Pa.  546,   18  Atl.   1066,   6 

5.  Simpson  v.  Stillwater  Co.,  62  L.  R.  A.  737,  27  Am.  &  Eng.  Corp. 
Minn.  444,  64  N.  W.  1144.  Cas.  566,  20  Pitts.  L.  J.  N.  S.  345,  47 

6.  Gray  v.  Boston  Gas  Light  Co.,  Phila.  Leg.  Int.  415,  25  W.  N.  C.  246. 
114  Mass.  149,  19  Am.  Rep.  324  and  That  others  contribute  to 
note  328.  nuisance      no      defense.        Smoke 

7.  Ft.  Worth  &  D.  C.  R.  Co.  v.  fumes  and  gases.  See  §  142  herein. 
Scott,  2  Wils.  Civ.  Cas.  Ch.  App.  9.  Doremus  v.  Mayor,  etc.,  of  Pat- 
§  140.  See  Stevenson  v.  Ebervale  erson  (N.  J.  E.  1905),  62  Atl.  3.  4. 
Coal  Co.,  201  Pa.  St.  112,  50  Atl.  10.  West  v.  State,  71  Ark.  14*,  7i 
818.  S.  W.  483  (Nuisance  here  was  a  stag- 
Jar     and     Vibration.     Defend-  nant  pond  and  rule  was  applied  in  a 

ant  may  show  injury  due  to  other  criminal  action)  ;  Morgan  v.  Dan- 
causes.     See  §   190  herein.  bury,     67     Conn.    484,     35     Atl.     499 

691 


477      Remedies,  Parties,  Defenses  and  Damages. 


a  stream  already  polluted  from  above,  but  what  he  contributes 
makes  the  water  unfit  for  stock,  and  charges  it  with  noxious  gases, 
when  before  it  was  fit  for  stock,  and  free  from  such  gases,  he  is 
liable  to  the  lower  owner  in  damages.11  The  rule  has  also  been 
applied  where  foul  water  was  pumped  into  a  canal,  making  it  a 
nuisance.12  But  it  is  held  that  although  such  matter  is  not  compe- 
tent to  defeat  the  action,  yet  it  goes  in  mitigation  of  damages.13 
Notwithstanding  the  above  rule  it  is  decided  that  the  defendant 
can  show  that  other  persons  were  making  deposits  in  the  stream 

(there  were  other   substances  in  the  Through     other    sources    than 


river  with  which  the  sewage  came  in 
contact)  ;  Barrett  v.  Mt.  Greenwood 
Cemetery  Assoc.  159  111.  385,  42  N.E. 
391,  31  L.  R.  A.  109  (a  case  of  ceme- 
tery drainage  but  waters  polluted  to 
some  extent  by  drains  and  washings 
from  manured  lands)  ;  West  Muncie 
Strawboard  Co.  v.  Slack,  164  Ind. 
21,  72  N.  E.  879,  Weston  Paper 
Co.  v.  Pope,  155  Ind.  395;  56 
L.  R.  A.  899,  57  N.  E.  719; 
City  of  Richmond  v.  Test,  18  Ind. 
App.  428,  48  N.  E.  610;  State  v. 
Smith,  82  Iowa,  423,  48  N.  W.  727; 
West  Arlington  Imp.  Co.  v.  Mount 
Hope  Retreat,  97  Me.  191,  54  Atl. 
982;  Beach  v.  Sterling  Iron  &  Z.  Co., 
54  N.  J.  Eq.  65,  33  Atl.  286  (stream 
here  was  polluted  by  discoloration)  ; 
Butler  v.  Village  of  White  Plains,  69 
N.  Y.  Supp.  193,  59  App.  Div.  30; 
Commonwealth  v.  Yost,  12  York  Leg. 
Rec.  149  (rule  applied  to  indict- 
ment) ;  Indianapolis  Water  Co.  v. 
American  Strawboard  Co.,  57  Fed. 
1000;  Attorney  Genl.  v.  Leeds  Cor- 
poration, 39  L.  J.  Ch.  711,  19  W.  R. 
19,  L.  R.  5  Ch.  583,  aff'g  22  L.  T. 
330.  See  Strokel  v.  Kerr  Salt  Co., 
164  N.  Y.  303,  51  L.  R.  A.  687,  58  N. 
E.  142,  rev'g  49  N.  Y.  Supp.  1144. 
Compare  Stevenson  v.  Ebervale  Coal 
Co.,  201  Pa.  St.  112,  50  Atl.  818. 


that  of  city  defendant  may  have 
been  responsible  for  the  collection  of 
objectionable  sewage,  such  fact  fur- 
nishes no  defense  if  the  city  in  fact 
contributed  to  the  nuisance  com- 
plained of  and  participated  in  the 
pollution  of  the  waters  that  caused 
the  injury.  City  of  Kewanee  v.  Ot- 
ley,  204  111.  402,  68  N.  E.  388;  citing 
Watson  v.  New  Milford,  72  Conn. 
561 ;  Barrett  v.  Mount  Greenwood 
Cemetery  Assoc,  159  111.  385;  Village 
of  Kewanee  v.  Ladd,  68  111.  App.  154; 
Weston  Paper  Co.  v.  Pope,  155  Ind. 
395,  57  N.  E.  719,  56  L.  R.  A.  899; 
Mansfield  v.  Hunt,  19  Ohio  C.  C.  488; 
Richmond  Mfg.  Co.  v.  Atlantic,  etc., 
Co.,  10  R.  I.  106;  Attorney  Genl.  v. 
Leeds,  L.  R.  5  Ch.  583,  28  Am.  &  Eng. 
Ency.  of  Law  968.  Examine  opinion 
in  Missouri  v.  Illinois  (the  Chicago 
Drainage  case),  200  U.  S.,  part  5, 
given  in  full  in  §  299  herein. 

11.  Ferguson  v.  The  Firmenich 
Mfg.  Co.,  77  Iowa  576,  42  N.  W.  448. 
14  Am.  St.   Rep.  319. 

12.  Attorney  Genl.  v.  Bradford 
Navigation  Co.,  L.  R.  2  Eq.  71,  35 
L.  J.  Ch.  619,  14  L.  T.  248,  14  W.  R. 
579. 

1.3.  City  of  Richmond  v.  Test,  18 
Ind.  App.  428,  48  N.  E.  610. 


692 


Remedies,  Parties,  Defenses  axd  Damages. 


4:78 


above  plaintiff's  property,  defendant  not  being  liable  for  the  sep- 
arate wrong  of  another.34.  It  is  also  decided  that  it  can  be  shown 
that  another  stream  on  the  same  premises  was'  in  whole  or  in  part 
the  source  of  the  stench  and  that  it  was  polluted  by  others.15  But 
the  State  in  a  prosecution  need  not  trace  the  impurities  of  a  stream 
which  is  fouled  by  sewage  at  a  certain  point  and  lower  down  simi- 
lar conditions  exist.16 

§  478.  Other  or  similar  nuisances — Similar  acts  by  others. — 
A  nuisance  cannot  be  justified  by  the  existence  of  other  nuisances 
of  the  same  or  a  similar  character  if  it  can  be  shown  that  the 
inconvenience  is  increased  by  the  nuisance  complained  of  ;17  for  the 
presence  of  other  nuisances  will  not  justify  any  one  of  them;  or 
the  more  nuisances  there  were  the  more  fixed  they  would  be.18 
So  the  existence  of  other  nuisances  at  the  same  time  is  no  justifi- 
cation to  defendant  on  an  indictment  for  a  nuisance  where  the 
question  is,  is  the  business  of  defendant  productive  of  odors  which 
are  offensive  to  those  within  their  range  so  that  it  produces  physi- 
cal discomfort?19  Again,  the  fact  that  acts  of  the  same  kind,  or 
that  similar  acts ;  or  that  the  same  kind  of  nuisance  is  being  com- 
mitted by  others  is  no  defense,  as  each  and  every  one  of  such 
wrongdoers  is  liable.20 


1.4.  Tennessee  Coal,  Iron  and  Rd. 
Co.  v.  Hamilton,  100  Tenn.  252,  46 
Am.  St.  Rep.  48,  14  So.  167  (action 
on  the  case  for  damages ) . 

15.  Shain  Packing  Co.  v.  Burrus, 
(Tex.  Civ.  App.),  75  S.  W.  838.  The 
character  of  this  evidence  however 
differs  from  that  on  which  the  rule 
is  based. 

1.6.  State  v.  Glucose  Sugar  Refiu 
ing  Co.,  117  Iowa  524,  91  N.  W.  794 

1.7.  Crossley  v.  Lightowler,  36  L 
J.  Ch.  584,  16  L.  T.  438,  L.  R.  2  Ch 
478,  15  W.  R.  801;  Richards  v 
Daugherty,  133  Ala.  569,  31  So.  934 
Burlington  v.  Stockwell,  5  Kan.  App 


569,  47  Pac.  988;  People  v.  Mallory, 
4  Thomp.  &  C.  (N.  Y.)  567;  Neville 
v.  Mitchell,  (Tex.  Civ.  App.)  66  S.  W 
579;  Saville  v.  Kilner,  26  L.  T.  N.  S. 
277.  Compare  Kissel  v.  Lewis,  156 
Ind.  233,  59  N.  E.  478. 

1.8.  Rex  v.  Neil,  2  Carr.  &  P.  485, 
per  Abbott,  C.  J. ;  a  case  of  smells 
from  defendant's  manufactory. 

19.  Seacord  v.  People,  121  111.  623. 
13  N.  E.  194;  Douglass  v.  State,  4 
Wis.  387. 

20.  Baltimore  v.  Warren  Mfg.  Co., 
59  Md.  96 ;  Woodyear  v.  Schaeffer,  57 
Md.  9,  40  Am.  Rep.  419. 


693 


§  480      Remedies,  Parties,  Defenses  and  Damages. 

§  479.  Where  plaintiff  contributes  to  or  maintains  similar 
nuisances.20a — It  is  held  that  in  a  damage  action  for  the  cre- 
ation of  a  nuisance  defendant  may  show  that  plaintiff  had 
established  a  nuisance  on  his  own  premises  which  contributed  to 
the  injury.21  But  it  is  held  to  be  a  defense  that  a  party  con- 
tributed materially  to  his  own  injury  where  he  claims  damage 
from  the  overflow  caused  by  a  bridge.22 

§  480.  Pollution  of  water  by  plaintiff.22a — It  is  held  that  the 
fact  that  plaintiff  himself  had  frequently  fouled  the  stream  to  the 
injury  of  those  below  him  gives  no  license  to  those  above  him 
to  use  the  stream  in  a  similar  way  and  does  not  bar  the  right  of 
plaintiff  to  recover.23  And  in  an  action  by  a  lower  reparian  pro- 
prietor against  an  upper  owner  for  the  pollution  of  water  and 
making  deposits  in  the  stream,  filling  up  its  channel  and  causing 
debris  to  be  deposited  on  land,  a  plea  that  plaintiff  was  guilty 
of  negligence  contributing  to  the  injury  in  that  he  failed  to  take 
due  precautions  to  prevent  it  is  insufficient,24  and  where  the  plain- 
tiff owned  property  in  the  defendant  city  which,  pursuant  to  its 
ordinances',  drained  into  its  sewers  and  thus  into  the  stream,  it 
was  held  that  this  did  not  show  such  contribution  upon  his  part  to 
the  injury  as  to  deprive  him  of  equitable  relief.25  So  where  plain- 
tiff also  pollutes  the  stream  contributing  to  a  public  nuisance,  such 
fact  constitutes  no  defense  in  an  action  against  a  city  for  polluting 
the  same  with  sewage,  to  the  plaintiff's  special  damage,  the  city,  as 
a  lower  proprietor,  not  being  specially  injured.26  But  it  is  also 
held  that  the  lower  owner  on  a  stream  cannot  recover  of  the  upper 
owner  for  polluting   it,   when  he   himself   pollutes  it  also,    and 

20a.  See  §§  45-47  herein.  Conn.   561,   77   Am.   St.  Rep.  345,   45 

21.  Holbrook   v.   Griffis,    127    Iowa       Atl.   167. 

505,    103    X.    W.   479.      But   compare  24.  Tennessee  Coal,  Iron  &  Rd.  Co. 

Seacord  v.  People,  121  111.  623,  13  N.  v.    Hamilton,    100    Ala.    252,    14    So. 

E.  291.  167,   46  Am.  St.   Rep.   48    (action  on 

22.  Peoria  &  Pekin  Union  Ry.  Co.  the  case  for  damages). 

v.    Barton,    38    111.    App.    469.       See  25.  Piatt    Bros.    &    Co.    v.    Water- 
Smith   v.   City   of  Auburn,   88   N.   Y.  bury.   72    Conn.   531,  45   Atl.   154,   48 
App.  Div.   396,   84  N.   Y.   Supp.   725.  L.  R.  A.  691,  77  Am.  St.  Rep.  335. 
22a.  See  §§  45-47  herein.  26.  Standard  Bag  &  Paper  Co.  v. 

23.  Watson    v.    New    Milford,    72  Cleveland,  25  Ohio  Cir.  Ct.  R.  380. 

G9i 


Remedies,  Parties,  Defenses  and  Damages.      §  481 

thus  contributes  to  the  very  injuries  of  which  he  complains.27 
Where,  however,  plaintiff  had  no  knowledge  of  the  fact  that  lie 
was  contributing  to  the  pollution  of  a  water  course  and  showed 
an  intention  to  remedy  the  condition  as  to  his  part,  equitable  relief 
against  the  pollution  was  not  denied.28 

§  481.  Negligence  —  Contributory  negligence — Due  care. — 
Negligence  may  have  no  application  to  the  law  of  nuisance  or  it 
may  exist  in  relation  thereto,29  but  ordinarily  negligence  is  not  an 
essential  element  in  an  action  for  damages  occasioned  by  a  nuis- 
ance,30 and  contributory  negligence  of  others  is  held  no  defense 
to  a  prosecution  for  a  public  nuisance.31  Again,  where  one  sinks 
an  artesian  well  upon  his  own  land,  and  uses  the  water  to  bathe 
the  patients  in  a  sanitarium  or  hospital  erected  by  him  on  said 
premises,  he  is  not  liable  to  injunction  and  damages  for  allowing 
the  water  to  flow  into  a  stream  which  is  the  natural  watercourse 
of  the  basin  in  which  the  artesian  well  is  situated,  the  owner 
being  free  from  negligence  or  malice  and  using  all  due  care  in 
avoiding  injury  to  his  neighbor.32  And  where  a  well  of  water  is 
polluted  by  gases,  it  does  not  necessarily  constitute  an  excuse  that 
a  gas  company  causing  the  injury  uses  all  reasonable  care  in  con- 
ducting its  business.33     So  the  fact  that  a  manufacturing  com- 

27.  Ferguson     v.     The     Firmenich  Right  of  way.    Contributory  neg- 

Mfg.  Co.,  77  Iowa,  576,  42  U.  W.  44S,  ligence.     See   §    199   herein. 

14  Am.  St.  Rep.  319.  32.  Barnard   v.   Shirley,    135    Ind. 

28.  West  Arlington  Imp.  Co.  v.  547,  34  N.  E.  600,  35  N.  E.  117,  41 
Mount  Hope  Retreat,  97  Md.  191,  54  Am.  St.  Rep.  454,  24  L.  R.  A.  568- 
Atl.  082.  575. 

29.  Distinction  between  neg-  33.  Belvidere  Gaslight  &  F.  Co.  v. 
ligence  and  nuisance.  See  §  18.  Jackson,  81  111.  App.  424.  See  In- 
herein.  dianapolis    Water    Co.    v.    American 

Negligence  as  an  element.     See  Strawboard  Co.,  57   Fed.    1000;    Sea- 

§  92  herein.  cord  v.  People,  121  111.  623,  13  N.  E. 

30.  Negligence.  Care,  reason-  194;  Cooper  v.  Randall,  53  111.  24; 
able  care  or  precaution  or  want  Winslow  v.  Bloomington,  24  111.  App. 
thereof.    See  §  44  herein.  647. 

31.  Louisville  C.  &  L.  R.  Co.  v.  Question  of  reasonable  care 
Commonwealth,  80  Ky.  143,  44  Am.  immaterial.  Smells.  See  §  167 
Rep.  468.     See  §§  45-47  herein.  herein. 

Dead       animal      on      railroad.  That  stable   properly  built   or 

kept  no  defense.     See  §  202  herein, 
G05 


§  483      Remedies,  Parties,  Defenses  and  Damages. 

pany  has  expended  a  large  sum  of  money  in  the  construction  of  its 
plant,  and  that  it  conducts  its  business  in  a  careful  manner  and 
without  malice,  will  not  relieve  it  fromi  liability  to  a  riparian  owner 
for  damages  for  depositing  refuse  matter  into  a  stream.34 

§  482.  That  water  potable  by  cattle  and  inhabitable  by 
fish  no  excuse  for  pollution. — That  water  of  a  stream1,  remains 
potable  by  cattle  and  inhabitable  by  fish  does  not  deprive  a  ripar- 
ian proprietor  of  his  right  of  action  where  the  stream  is  fouled 
to  his  injury,  such  facts  being  immaterial  except  in  mitigation  of 
damages.35 

§  483.  Benefit  to  public;  balancing  conveniences.  —  Or- 
dinarily the  law  will  not  undertake  to  balance  conveniences  or 
estimate  the  difference  between  the  injury  sustained  by  the 
plaintiff,  and  the  loss  that  may  result  to  defendant  from  hav- 
ing its  trade  or  business  found  to  be  a  nuisance,  no  one  has  the 
right  to  create  a  nuisance  by  erecting  works  and  then  say  that  he 
has  expended  large  sums  of  money  by  such  erection  and  that  the 
neighboring  property  is  of  little  value,36  and,  although  the  thing 
complained  of,  may  upon  the  whole  furnish  a  greater  convenience 
to  the  public  than  it  takes  away  this  will  be  no  answer  to  an  in- 
dictment therefor.37  Again,  it  is  no  justification  on  an  indictment 
for  a  nuisance'  in  the  obstruction  of  a  navigable  river,  that  the 
benefit  derived  from  the  erection,  which  creates  the  nuisance,  to  a 
certain  portion  of  the  public,  is  greater  than  and  counter-balances 
the  injury  done  to  another  portion  by  the  obstruction  of  the  naviga- 
tion. Semble,  however,  that  if  the  injury  be  done,  and  that  benefit 
accrue  to  the  same  portion  or  body  of  the  public,  it  is  for  the  jury 

34.  The  Weston  Paper  Co.  v.  Pope,  595 ;  Respublica  v.  Caldwell,  1  Dall 
155  Ind.  394,  56  L.  R.  A.  899,  57  N.  (U.  S.)  150;  Seacord  v.  People,  121 
E.  719.  111.   623,    13   N.   E.    194,  aff'g  22   111. 

35.  Watson  v.  New  Milford,  72  App.  279;  State  v.  Raster,  35  Iowa, 
Conn.  561,  77  Am.  St.  Rep.  345,  45  221;  People  v.  Horton,  5  Hun  (N.  Y.) 
Atl.  167.  516;     Smith    v.     Phillips,     8     Phila. 

36.  Susquehanna   Fertilizer   Co.   v.  (Pa.)    10. 

Malone,  73  Md.  268,  282,  9  L.  R.  A.  37.  Seacord  v.  People,  121  111.  623, 

737,   20  Atl.   900,   25    Am.    St.   Rep.       13  N.  E.  194,  10  West  Rep.  915. 

696 


Kemedies,  Parties,  Defenses  and  Damages.      §  483 

to  say  whether  the  erection  is  a  nuisance  or  not.38  So  it  is  de- 
clared in  an  Iowa  case  that  justification  for  the  establishment 
and  maintenance  of  a  nuisance  by  the  pollution  of  a  water  course 
cannot  be  established  by  evidence  that  the  business  in  which  de- 
fendant was  engaged  was  one  of  benefit  and  profit  to  the  general 
public;  and  a  nuisance  is  created  when  the  use  of  the  stream  by 
the  first  user  is  unreasonable  in  character,  and  such  as  to  produce 
a  condition  actually  destructive  of  physical  comtfort  or  health  or  a 
tangible  visible  injury  to  property.39  And  in  a  New  York  case 
the  court  says  that  it  is  no  defense  that  the  person  creating  the 
nuisance  employs  many  men,  or  uses  a  great  capital,  or  that  his 
business  is  a  public  benefit  compared  with  which  the  damage  to 
the  other  is  comparatively  slight.  More  important  than  all  these 
considerations  is  the  enforcement  cf  the  rule  that  one  may  not  in- 
fringe the  property  rights  of  another.  But  a  permanent  injunc- 
tion will  not  be  granted  where  it  would  do  great  damage  to  a 
costly  business  plant  and  give  comparatively  small  relief  to  com- 
plainant.40 So  under  a  federal  decision  a  public  nuisance  cannot  be 
tolerated  on  the  ground  that  the  community  may  realize  some  ad- 
vantages from  its  existence.41  In  a  Michigan  case  it  is  also  held 
that  where  a  nuisance  exists  it  is  of  no  consequence  that  the  busi- 
ness is  useful  or  necessary  or  that  it  contributes  to  the  wealth  and 
prosperity  of  the  community.42  Under  an  Ohio  decision  if  the 
right  and  its  invasion  are  both  clear,  the  relative  degree  of  damage 
on  both  sides,  as  in  the  case  of  the  unlawful  exercise  of  a  trade 
by  one  and  the  use  of  property  by  another,  will  not  ordinarily  be 
entitled  to  any  special  weight  to  prevent  the  issuance  of  an  in- 
junction.43 In  an  Illinois  case  it  is  held  that  the  law  does  not  bal- 
ance conveniences,  and  it  makes  no  difference  if  the  work  is  really 
in  the  interest  of  society  or  necessary  for  the  preservation  of  the 

38.  Rex  V.  Ward,  4  A.  &  E.  384,  41.  Works   v.    Junction    R.    R.,    5 
6  N.  &  M.  38,  1  H.  &  W.  703,  5  L.  ■!.  McLean  425,  Fed.  Cas.  No.   18,046. 
K.  B.  221.  42.  People  v.   White  Lead   Works, 

39.  Bowman  v.  Humphrey,  124  82  Mich.  471,  478,  46  N.  W.  735,  9  L. 
Iowa  744,  100  N.  W.  854.  R.  A.  722. 

40.  Bentley  v.  Empire  Portland  43.  Shaw  v.  Queen  City  Forging 
Cement  Co.  (Supreme  Ct.),  48  Misc.  Co.,  7  Ohio  N.  P.  254,  10  Ohio  S.  & 
(N.  Y.)   457,  per  Andrews,  J.  C.  P.  Dec.  107. 

697 


§  484      Remedies,  Parties,  Defenses  and  Damages. 

public  health.44  Again,  upon  the  trial  of  an  indictment  for  a 
nuisance  in  a  navigable  river  by  erecting  staiths  there  for  loading 
ships  with  coals,  the  jury  were  directed  to  acquit  the  defendant  if 
they  thought  that  the  abridgement  of  the  right  of  passage  oc- 
casioned by  the  erections  was  for  a  public  purpose  and  produced  a 
public  benefit,  and  if  the  erections  were  in  a  reasonable  situation, 
and  a  reasonable  space  was  left  for  the  passage  of  vessels  on  the 
river,  and  the  judge  pointed  out  to  the  jury  that  by  means  of  the 
staiths  coals  were  supplied  at  a  cheaper  rate  and  in  a  better  con- 
dition than  they  would  otherwise  be,  which  was  a  public  benefit. 
It  was  held  that  this  decision  was  proper.40 

§  484.  Same  subject. — Xotwithstanding  the  preceding  decisions 
there  are  many  cases  which  assert  a  different  rule,  especially  in 
equity.  Thus,  it  is  declared  in  an  English  case,  that  in  cases  where 
important  public  interests  are  involved  such  as1  the  improvement  of 
the  drainage  of  a  town,  the  court  will  protect  the  private  rights 
of  the  individual  if  affected  in  any  material  degree,  but  it  will 
at  the  same  time  have  regard  to  the  nature  and  extent  of  the  injury 
or  nuisance  and  to  the  balance  of  inconveniences.46  It  is  also  said 
that  courts  of  equity  will  be  less  inclined  to  interfere,  where  the  ap- 
prehended mischief  to  follow  from  the  alleged  nuisance  has  a 
tendency  to  promote  public  convenience.47  So  in  Xorth  Carolina 
in  case  of  a  private  nuisance  in  the  erection  of  a  mill  or  pond 
which  is  a  public  convenience,  a  court  of  chancery  will  not  inter- 
fere where  there  is  nothing  to  show  that  there  is  so  great  a  dis- 
proportion between  the  private  suffering  and  the  public  conven- 
ience as  wTould  authorize  such  interference.48  And,  under  an 
Alabama  decision,  in  determining  whether  an  injunction  will  be 
issued,  the  court  will  take  notice  that  while  an  invasion  of  private 

44.  Seacord  v.  People.  121  111.  623,  46.  LillywMte  v  Trimmer,  36  L. 
636,  13  N.  E.  194,  so  holding  in  case  J.  Ch.  525,  15  W.  R.  763,  16  L.  T. 
of    business    of    rendering    dead    ani-       318. 

mals.  47.  Clifton    Iron    Co.    v.    Dye.    87 

45.  Rex.  v.  Russell,  6  B.  &  C.  566,  Ala.  468,  470,  6  So.  192;  Robinson  v. 
1  D.  &  R.  566,  5  L.  J.    (0.  S.)  M.  C       Baugh,  21   Mich.  290. 

80,  30  R.  R.  432.     Contra,  Atty-Gen.  48.  Bradsher  v.  Lea's  Heirs,  38  N. 

v.  Terry,  L.  R.   9   Ch.  423,   30  L.   T.       C.   301,  305. 
215,  22  W.  R.  395. 

698 


Kemedies,  Parties,  Defeases  and  Damages.  431 

rights  may  produce  injury  entitling  the  owner  to  redress,  yet  thai 
great  public  interests  and  benefits  will  accrue  from  the  acts  alleged 
to  be  a  nuisance.49  It  is  also  declared  that  courts  of  equity  will  be 
less  inclined  to  interfere  where  the  apprehended  mischief  to  fol- 
low from  the  alleged  nuisance  has  a  tendency  to  promote  public  con- 
venience.5^ In  another  decision  it  is  held  that  in  determining  upon 
the  propriety  of  injunctive  relief  against  private  nuisances,  the 
court  will  be  influenced  against  ordering  an  abatement  by  the  facts 
that  the  structures-  from  which  the  nuisance  arises  is  useful  to  the 
defendant  and  the  public,  and  the  injury  to  the  plaintiff  trifling.51 
So  in  Illinois  if  the  benefit  exceeds  damages,  it  is  held  that  no  re- 
covery can  be  had.52  Again,  it  is  declared  that  "  it  is  not  every  case 
of  nuisance  or  continuing  trespass,  which  a  court  of  equity  will  re- 
strain by  injunction.  In  determining  this  question,  the  court 
should  weigh  the  injury  that  may  accrue  to  one  or  the  other  party, 
and  also  to  the  public,  by  granting  or  refusing  the  injunction."  5S 
Under  a  West  Virginia  decision  if  the  alleged  nuisance  is  of  a 
public  character  the  court  will  consider  the  injuries  which  may 
result  to  the  public  by  granting  the  injunction  as  well  as  the  in- 
juries to  be  sustained  by  plaintiff  in  refusing  it  And  when  the 
public  benefit  outweighs  the  private  inconvenience,  an  injunction 
will  not  be  granted.54  So  in  a  New  Jersey  case  an  injunction  will 
not  be  granted  where  injury  is  slight,  compared  to  inconvenience 
to  public  and  defendant  by  granting  injunction.55  Again,  where 
the  erection  of  a  public  mill  is  demanded  by  the  necessities  and 

49.  Clifton    Iron    Co.    v.    Dye,    87  52.  Chicago    Forge   &   Bolt    Co.   V. 
Ala.  468,  6  So.  192.  Sanche,  35  111.  App.  174. 

50.  Harrison    v.    Brooks,    20    Ga.  53.  Clifton    Iron    Co.    v.    Dye,    87 
537,     544;     Robinson    v.     Baugh,     31  Ala.  468,  470,  471,  6  S.  192. 

Mich.  290;  Barnes  v.  Calhoun,  37  N.  54.  Mees  v.  Coal  &  Iron  Railway 

C.  199,  201.      See  Amelia  Milling  Co.  v.  Co.,  54  W.  Va.  421,  430,  46  S.  E.  ICC, 

Tennessee  Coal,  I.  &  R.  Co.,  123  Fed.  citing    1    Spelling   on    Injunctions,    § 

811;    People  v.  Horton.  64  N.  Y.   10,  417. 

aff'g  5  Hun,  516  Daughtry  v.  Warren,  55.  Higbee  &   Riggs   v.   Camden   & 

85   N.    C.    136;    Foster   v.    Norton,    2  Amboy  Rd.  &   Transp.  Co.,  20  N.   J. 

Ohio  Dec.  390;  Wees  v.  Coal  &  Iron  Eq.  435.     See,  also,  Morris  &  Essex: 

R.  Co.,  54  W.  Va.  421,  46  S.  E.  166.  Rd.  Co.  v.  Prudden,  20  N.  J.  Eq.  530, 

51.  Brown   v.    Carolina    Cent.   Ry.  537. 
Co.,  83  N.  C.  128. 

.699 


§  -185      Remedies,  Parties,  Defenses  and  Damages. 


convenience  of  the  public,  and  will  materially  conduce  to  the  ad- 
vantage of  the  owner  of  the  mill-seat,  the  possible  result  of  some 
small  and  uncertain  injuries'  to  two  of  the  adjacant  proprietors  of 
land,  by  overflowing  it,  and  slightly  affecting  the  health  of  their 
families,  was  not  deemed  by  the  court  a  sufficient  ground  to  in- 
interfere  by  injunction  to  prevent  the  work,  especially  as  those 
proprietors  would  have  a  remedy  at  law  if  their  fears  should  be 
realized.56 

§  485.  Acquiescence,  knowledge  or  failure  to  complain — Laches 
estoppel. — To  constitute  acquiescence  a  party  must  have  been  aware 
of  all  the  facts  and  circumstances  and  have  had  opportunity  after 
being  possessed  of  all  the  facts  and  circumstances  to  exercise  his 
judgment   and  to  assent   and   must  have   intended    to    do    so.57 


56.  Wilder  v.  Strickland,  55  N.  C. 
(2  Jones  Eq.)    386. 

57.  Barkan    v.    Knecht,    10   Wkly. 
Law,  Bull  342. 

When  acquiescence,  knowl- 
edge or  failure  to  complain  no 
defense  or  estoppel.  See  Indianapolis 
Water  Co.  v.  American  Strawboard 
Co.  (C.  C.  D.  Ind.)  57  Fed.  Rep. 
1000;  Town  of  Union  Springs  v. 
Jones,  58  Ala.  654;  Jacob  v.  Day,  111 
Cal.  571,  44  Pac.  243;  Learned  v.  Cas- 
tle, 78  Cal.  454,  18  Pac.  872,  21  Pac. 
11;  Dwight  v.  Hayes,  150  111.  273,  37 
N.  E.  218,  41  Am.  St.  Rep.  367,  aff'g 
49  111.  App.  530;  Laflin  &  R.  Powder 
Co.  v.  Tearney,  131  111.  322,  21  N.  E. 
516,  7  L.  R.  A.  262,  23  N.  E.  389, 
aff'g  30  111.  App.  321,  19  Am.  St. 
Rep.  34 ;  West  Muncie  Strawboard  Co. 
v.  Slack,  164  Ind.  21,  72  N.  E.  879; 
Fossen  v.  Clark,  113  Iowa,  86,  84  N. 
W.  989,  52  L.  R.  A.  279;  Corley  v. 
Lancaster,  81  Ky.  171;  O'Brien  v. 
City  of  St.  Paul,  18  Minn.  176  (Gil. 
163)  ;  Schumacher  v.  Shawhan,  93 
Mo.  App.  573,  67  S.  W.  717;  Thomas 


v.    Concordia    Cannery    Co.,    68    Mo. 
App.  350;  Chapman  v.  Rochester,  110 
N.  Y.  273,  18  N.  Y.  St.  R.  133,  18  N. 
E.  88 ;  Leonard  v.  Spencer,  108  N.  Y. 
338,  15  N.  E.  397 ;  Adams  v.  Popham, 
76  N.  Y.  410;  Carter  v.  New  York  El. 
R.   Co.,   14  N.  Y.   St.  Rep.   859;   Bol- 
ton v.  New  Rochelle,  84  Hun,  281,  32 
N.    Y.    Supp.    442;    Vick    v.    City   of 
Rochester,    46    Hun     (N.    Y.),    607; 
Cilly   v.    City   of   Cincinnati,    7    Ohio 
Dec.  Reprint,  344;  McClung  v.  North 
Bend  Coal  &  C.  Co.,  31  Ohio  L.  J.  9; 
Alexander  v.  Kerr,  2  Rawle  (Pa.)  83, 
19  Am.  Dec.  616;   Smith  v.   Phillips, 
8     Phila.     10;      Bert     v.     Smith,     3 
Phila.     (Pa.)    363;    Pilcher   v.    Hart, 
1    Humph.     (Tenn.)     524;    Pfleger   v. 
Groth,    103   Wis.    104,   79   N.  W.    19; 
Fogarty    v.    Junction    City    Pressed 
Brick  Co..  50  Kan.  478,   18  L.  R.  A. 
756,  31  Pac.   1052.     Examine  Schew- 
rich  v.  Southwest  Missouri  Light  Co., 
109   Mo.   App.    406,   84   S.    W.    1003; 
Smith   v.    City    of    Auburn.    88    App. 
Div.  396,  84  N.  Y.  Supp.  725;  Hies- 
skell  v.  Gross,  3  Brewst.  430;  Warren 


700 


Remedies,  Parties,  Defeases  am>  Damages. 


485 


Again,  the  fact  that  when  one  purchased  land  he  knew  of  the  exist- 
ence thereon  of  a  nuisance  consisting  of  a  discharge  thereon  of 
refuse  from  a  neighboring  creamery,  under  an  alleged  easement, 
would  not  estop  him  from  maintaining  proceedings  to  abate  the 
nuisance.58  And  a  riparian  owner  who  donated  straw  to  induce 
the  contraction  of  a  strawboard  plant  and  stood  by  while  a  large 
sum  of  money  was  expended  in  its  erection,  without  knowledge  or 
notice  that  in  the  operation  of  the  plant  the  waters  of  a  stream 
would  be  unlawfully  corrupted  to  a  public  nuisance  thereby 
created,  is  not  precluded  from  asserting  a  claim  for  damages  for 
injury  to  his  property  and  for  an  injunction.59  So  it  is  held  that 
delay  in  instituting  suit  and  failure  to  complain  is  not  a  defense 
when  such  delay  is  short  of  the  statutory  period  of  limitations.60 
And  the  delay  of  fourteen  years  from  the  commencement  of  the 
nuisance  to  the  filing  of  the  information  would  be  no  bar  to  the 


v.  Hunter,  1  Phila,  (Pa.)  414.  See 
Bankhart  v.  Houghton,  27  Beav.  425. 

Laches.  When  delay  in  suing 
no  bar  to  relief.  Water  Lot  Co.  v. 
Jones,  30  Ga.  944;  West  Arlington 
Imp.  Co.  v.  Mount  Hope  Retreat,  97 
Me.  191,  54  Atl.  982;  Mueller  v. 
Fruen,  36  Minn.  273,  30  N.  W.  886; 
Carlisle  v.  Cooper,  21  N.  J.  Eq.  576; 
Alexander  v.  Kerr,  2  Rawle  (Pa.)  83, 
19  Am.  Dec.  616;  Lonsdale  Co.  v. 
Cook  (R.  I.  1899),  44  Atl.  929; 
Francklyn  v.  People's  Heat  &  L.  Co. 
(Carr.),  32  N.  S.  44. 

When  acquiescence,  knowl- 
edge or  laches  is  a  bar  or 
estoppel.  Whaley  v.  Wilson,  112  Ala. 
627,  20  So.  922;  Platte  &  D.  Ditch 
Co.  v.  Anderson,  8  Colo.  131,  6  Pae. 
515;  Pierce  v.  German  Savings  & 
Loan  Soc,  72  Cal.  180,  13  Pac.  478, 
1  Am.  St.  Rep.  45;  Fenter  v.  Toledo, 
St.  L.  &  K.  C.  R.  Co.,  29  111.  App. 
250;  Jordan  v.  Helwig,  1  Wils. 
(Ind.)  447;  Chaffee  v.  Telephone  & 
Teleg.   Co.,  6  L.  R.  A.  455,  77  Mich. 


625,  43  N.  W.  1064;  Wilmarth  v. 
Woodcock,  66  Mich.  331,  33  N.  W. 
400;  Bassett  v.  Salisbury  Mfg.  Co., 
47  N.  H.  426;  Sprague  v.  Steere,  1 
R.  I.  247 ;  Madison  v.  Ducktown  Sul- 
phur Copper  Iron  Co.,  113  Tenn.  331, 
83  S.  W.  658;  Caldwell  v.  Knott,  18 
Tenn.  (10  Yerg.)  209;  Pettibone  v. 
Burton,  20  Vt.  302;  Examine  Clifford 
Iron  Co.  v.  Dye,  87  Ala.  468,  6  South 
192;  River  Ribble  Joint  Committee  v. 
Croston  Urban  Dist.  Council  (1897), 
1  Q.  B.  251. 

Intention  does  not  affect,  See 
§  94  herein. 

58.  Van  Vossen  v.  Clark,  113  Iowa 
86,  52  L.  R.  A.  279,  84  N.  W.  989. 

59.  The  Weston  Paper  Co.  v.  Pope, 
155  Ind.  395,  56  L.  R.  A.  899,  57  N. 
E.  719. 

60.  West  Muncie  Strawboard  Co. 
v.  Slack,  164  Ind.  21.  72  N.  E.  879. 

61.  Atty-General  v.  Colney  Hatch 
Lunatic  Asylum,  38  L.  J.  Ch.  265,  L. 
R.  4  Ch.  146,  19  L.  T.  708,  17  W.  R. 
240. 


701 


§  486      Remedies,  Parties,  Defenses  and  Damages. 

relief,  but  at  all  events,  where  the  time  had  been  occupied  in  ne- 
gotiations and  attempts  to  remove  the  nuisance,  the  delay  was  im- 
material.61 So  it  is  held  that  although  the  plaintiff  has  submitted 
to  the  injury  for  nearly  four  years,  trusting  to  the  assurance  of 
the  council  that  they  were  carrying  out  a  scheme  of  sewage  by 
which  eventually  the  evil  would  be  removed,  he  was  not  precluded 
on  the  ground  of  laches  from  now  applying  for  an  injunction,  the 
rule  in  such  cases  being  that  the  mere  prospect  of  injury  does  not 
give  a  right  to  this  relief.62  So  a  hospital  not  being  a  nuisance 
per  se,  one  injured  thereby  is  not  guilty  of  laches  in  not  bringing 
suit  before  it  is  opened  and  in  waiting  five  months  and  seven  days 
thereafter ;  it  appearing  that  the  operation  of  the  place  as  a  home 
was  at  first  not  offensive,  that  plaintiff  was  not  familiar  with  the 
operations  of  a  hospital;  that  complaint  was  made  to  defendant 
before  suit  was  brought,  and  that  it  was  obvious  that  the  purpose  of 
opening  a  hospital  would  not  have  been  abandoned  if  requested. 
Plaintiff,  in  such  a  case,  had  a  right  to  wait  till  fully  advised  of  its 
ill  effects  upon  herself  and  her  property  before  bringing  suit.63 

§  486.  Other  instances  of  defenses  generally. — It  is  no  defense 
that  the  nuisancer  may  be  held  liable  to  others.64  And  one  who 
receives  actual  damages  from  a  nuisance  may  maintain  a  private 
action,  even  though  there  may  be  many  others  in  the  same  situa- 
tion.65 So  the  fact  that  several  landowners  as  well  as  the  plaintiff 
sustain  damage  by  the  waters  of  a  stream  which  flows  through 

Wlen  statute  of  limitations  is  62.  Atty-General     v.     Council      of 

no  defense  to  a  bill  to  abate  a  pub-  Borough  of  Birmingham,  4  Kay  &  .1. 

lie  nuisance.     Weiss  v.  Taylor    (Ala.  528,  6  W.  R.  811. 

1905)    39  So.  519.  63.  Deaconess  Home  &  Hospital  v. 

When  statute  limitations  com-  Bontjes,  104  111.  App.  484,  493,  aff'd 

mences  to  run.     When  no  bar.     See  207  111.  553,  561,  69  N.  E.  748. 

Daneri  v.  Southern  California  R.  Co.,  64.  City  of  Durango  v.  Chapman. 

122  Cal.  507,  55  Pac.  243;   Powers  v.  27  Colo.  169,  60  Pac.  635. 

Council  Bluffs,  45  Iowa  652,  24  Am.  65.  Wylie  v.  Elwood,  134  111.  281. 

Rep.  792;  Howard  County  v.  Chicago  25  N.  E.  570,  9  L.  R.  A.  726,  23  Am. 

&  A.  R.  Co.,  130  Mo.  652,   32  S.  W.  St.  Rep.  673;  Cooley  v.  Lancaster,  81 

651;  Ridley  v.  Seaboard  &  R.  R.  Co.,  Ky.    171;    Francis   v.    Schoelkopf,   53 

124  N.  C.  34,  32  S.  E.  325;  Henry  v.  N.  Y.  152;  Lansing  v.  Smith,  4  Wend. 

Ohio  River  R.  Co.,  40  W.  Va.  234,  21  (N.  Y.),  25.     Examine  Crane  Co.  v. 

S.  E.  863.  Stammers,  83  111.  App.  329. 

T02 


Kemedies,  Parties,  Defenses  and  Damages.  486 

their  premises,  being  polluted,  such  damage  differing  in  degree, 
does  not  make  such  pollution  a  public  nuisance.66    And  the  creator 
of  a  public  nuisance  consisting  of  noise  and  loud  cries  may  be 
liable  even  though  those  of  the  public  then  present  suffered  no 
annoyance.67     Nor  is  it  any  defense  that  the  nuisance  is  a  public 
one  ;68  and  in  an  action  on  the  case  for  diverting  water  from  the 
plaintiff's  mill,  it  is  no  defense  that  the  mill  stands  within  the 
limits  of  tide  waters,  and  is  therefore  a  public  nuisance.69    Nor  is 
it  a  defense  that  besetting  and  watching  laborers  was  merely  for 
peaceful  persuasion  ;70  nor  that  one  who  is  injured  in  his  property 
rights  does  not  live  on  the  property  ;71  nor  that  accused  acted  upon 
his  attorney's  advice  ;72  nor  that  the  nuisance  was  created  in  order 
to  abate  or  remedy  another  nuisance;73  nor  that  values  are  in- 
creased by  the  nuisance;74  and  it  is,  as  a  matter  of  law,  no  answer 
to  a  nuisance  to  another's  right  that  the  creator  of  the  nuisance 
had  before  done  the  injured  party  a  benefit,  the  acts  of  nuisance 
and  the  benefit  being  separate  and  distinct.    The  law  in  the  matter 
of  nuisance  has  no  set-off  or  recoupment.75    Again,  it  is  no  defense 
that  a  city's  acts  in  creating  the  nuisance  were  ultra  vires;76  nor 
that  expense  would  be  incurred  in  removing  the  nuisance;77    nor 
that  plaintiff's  structure  is  partly  upon  a  public  highway,  the 
street   having  been   inaccurately   surveyed;78   Nor   that    accused 

66.  Smith  v.  City  of  Sedalia,  152  72.  Skinner   v.    State,     (Tex.    Civ. 

Mo    283,  48  L.  R.  A.  711,  53   S.  W.  App.),  65  S.  W.  1073. 

907  73.  Western  &  A.  R.  Co.  v.  Cox,  93 

67    Commonwealth  v.  Harris,    101  Ga.  561,  30  S.  E.  68;  Seacord  v.  Peo- 

Mass  29  P^,   22   111.   App.    194.   affd    121    111. 

68.  Haller     v.     Pine,     8     Blackf.  623,  13  N.  E.  194,  10  W.  Rep.  915. 
(Ind  )    175,  44  Am.  Dec.  762;  Watts  74.  Francis    v.    Schoelkopf,   53    N. 
v    Norfolk  &  W.  R.  Co.,  39  W.  Va.  Y.    153;    Wesson   v.    Washburn   Iron 
196,  45  Am.   St.  Rep.  894.  57  Am.  &  Co.,    13    Allen    (Mass.)    95,    45    Am. 
Eng   R.  Cas.  694,  19  S.  E.  521,  23  L.  Dec.  181. 

R  \   674  75.  Talbot    v.     Whipple,     7     Gray 

69.  Simpson  v.   Seavey,  8  Greenlf.        (Mass.)   122,  124. 

(Me),   138,  22   Am.  Dec.  228.  76.  Pettit      v.      Grand      Junction, 

70. 'Lyons    v.    Wilkins     (1899),    1  Greene  County,   119  Iowa  352,  93  N. 

Ch.  255,  68   L.   J.   Ch.    146,  63   J.  P.  W.  381. 

339    79  Law  T.  N.   S.   709,  47  W.  R.  77.  Faulkenbury    v.    Wells,     (Tex. 

291'  Civ.  App.)   6S  S.  W.  327. 

71    Weakley   v.   Page    (Tenn.),   53  78.  Houston  &  Great  Northern  R. 

s   w'  551  Co.  v.  Parker,  50  Tex.  333. 

703 


§  486      Remedies,  Parties,  Defenses  and  Damages. 

merely  acted  as  agent  of  a  non-resident;79  nor  that  one  who  ob- 
structs a  public  highway  believed  his  boundary  line  extended  into 
the  road  ;80  nor  in  a  prosecution  for  pollution  of  waters,  the  failure 
of  a  city 'to  provide  proper  drainage  facilities;51  nor  is  the  fact  that 
plaintiff  might  possibly  have  avoided  the  injury  or  have  abated 
the  nuisance  a  defense.82  But  the  testimony  of  a  civil  engineer 
that  a  couple  of  culverts  through  the  defendant's  embankment 
would  help  materially  in  draining  the  land  is  held  admissible  for 
the  purpose  of  showing  one  of  the  means  by  which  the  appellant, 
could  have  avoided  the  injury  complained  of.83  A  nuisance  will 
not,  it  is  decided,  be  enjoined  after  it  has  been  voluntarily  abated,84 
and  an  intention  to  discontinue  or  remedy  the  nuisance  coupled 
with  acts  evidencing  such  intention  is  material  in  this  connec- 
tion.85    So  in  an  English  case  a  bill  was  filed  to  restrain  a  local 


79.  State  v.  Bell,  5  Port.  (Ala.) 
365. 

80.  Skinner  v.  State,  (Tex.  Civ. 
App.)  65  S.  W  1073.  Examine  Smith 
v.  Glenn,  129  Cal.  XVIII,  62  Pac. 
180;  Grace  v.  Walker,  95  Tex.  39,  64 
S.  W.  930;  61  S.  W.  1103;  65  S.  W. 
482. 

81.  Mergentheim  v.  State,  107  Ind. 
567,  8  N.  E.  568. 

82.  Crommelin  v.  Coxe,  30  Ala. 
318,  68  Am.  Dec.  120;  White  v. 
Chapin,  102  Mass.  138;  Stevenson  v. 
Ebervale  Coal  Co.,  203  Pa.  316,  52 
Atl.  201;  Masonic  Temple  Assoc,  v. 
Banks,  94  Va.  695,  27  S.  E.  490.  See 
High  Wycombe  v.  Conservators  ot 
River  Thames  (Q.  B.),  78  Law  T. 
Rep.  463.  Compare  Rosser  v.  Ran- 
dolph, 7  Port.  (Ala.)  238.  31  Am. 
Dec.  712. 

83.  Willitts  v.  Chicago,  Burling- 
ton &  Kansas  City  R.  Co.,  88  Iowa, 
282,  21  L.  R.  A.  608,  55  N.  W.  313. 

"Where  nuisance  can  be 
avoided.  See  §  90  herein. 

Where        nuisance        can        be 


avoided.     Noises,  jars  and  vibra 
tions.     See  §  187  herein. 

84.  Perry  v.  The  Howe  Co-opera- 
tive Creamery  Co.,  125  Iowa,  415, 
101  N.  W.  150;  Bennett  v.  Na- 
tional Starch  Mfg.  Co.,  103  Iowa, 
207,  72  N.  W.  507;  State  v.  Strick- 
ford,  70  N.  H.  297,  47  Atl.  262;  State 
v.  Rhodes,  66  N.  H.  39,  25  Atl.  588, 
18  L.  R.  A.,  646;  Umscheid  v. 
San  Antonio  (Tex.  Civ.  App.) 
69  S.  W.  496.  Examine  Sharp  v. 
Arnold,  108  Iowa,  203,  78  N.  W.  819; 
Trulock  v.  Merte,  72  Iowa  510,  34  N. 
W.  307 ;  Sammons  v.  Gloversville,  175 
N.  Y.  346,  67  N.  E.  622,  aff'g  74  N. 
Y.  Supp.  1145;  Amrhein  v.  Quaker 
City  Dye  Works,  192  Pa.  253,  43  Atl. 
1008. 

Where  nuisance  abated  pen- 
dente lite.     See   §  91   herein. 

85.  Hughes  v.  General  Electric 
Light  &  Power  Co.,  107  Ky.  485,  54  S. 
W.  723;  Green  v.  Lake,  54  Wis.  540, 
28  Am.  Rep.  378;  King  v.  Morris  &  E. 
R.  Co.,  18  N.  J.  Eq.  397;  Bailey  v. 
New  York  City,  78  N.  Y.  Supp.  210, 


704: 


Remedies,  Parties,  Defenses  and  Damages.  487 

board  of  health  from  discharging  sewage  into  their  river  so  as  to 
be  a  nuisance  and  injury  to  the  plaintiff ;  the  court,  finding  that  the 
plaintiff  sustained  no  material  injury,  and  that  the  nuisance,  if 
any,  had  been  to  a  great  extent  abated  since  the  filing  of  the  bill, 
refused  the  injunction  and  dismissed  the  bill,  but  without  costs, 
the  plaintiff  appearing  to  have  had  some  justification  for  insti- 
tuting the  suit.88 

§  487.  Same  subject. — It  is  held  that  the  court  is  not  ousted 
of  jurisdiction  by  such  abatement  or  discontinuance  of  a  nui- 
sance ;87  and  that  jurisdiction  may  also  be  retained  to  award  dam- 
ages, though  the  nuisance  is  abated.88  Again,  it  is  no  excuse  that 
mining  operations  carried  on  in  the  ordinary  manner  will  neces- 
sarily discolor  or  pollute  waters  of  a  stream  by  fine  clay.89  So 
even  though  drainage  is  necessary  to  the  beneficial  operation  of  a 
coal  mine  and  it  is  properly  performed  it  constitutes  no  defense 
where  it  occasions  injury  to  a  lower  riparian  proprietor  by  pollut- 
ing waters  of  a  stream.90  So  if  refuse  from  a  coal  mine  is  cast  into 
a  stream  and  its  descent  is  quickened  by  extraordinary  floods  so 
that  it  is  deposited  upon  land  of  a  lower  riparian  proprietor  to 
his  damage  the  mine  owner  is  liable,  nevertheless,  where  such 
refuse  would  be  carried  by  ordinary  currents  of  the  stream;  as 
the  rule  relieving  the  miner  from  liability  does  not  apply  in  such 
a  case  as  to  a  case  of  refuse  deposited  on  a  miner's  own  land  and 
being  washed  down  on  another's  land  by  extraordinary  floods.91 

38   Misc.   41;    Umscheid  v.    San   An-  7  Misc.  374;  Heather  v.  Hearn,  5  N. 

tonio,  (Tex.  Civ.  App.)  69  S.  W.  496.  Y.  Supp.  85;  Peck  v.  Elder,  3  Sandf. 

Compare    Ingersoll    v.    Rousseau,    35  (N.    Y.)     126;    Chester    v.    Smelting 

Wash.  92,  76  Pac.  513.  Corp.,  85  Law  T.  67. 

86.  Lillywhite  v.  Trimmer,  36  L.  88.  McCarthy  v.  Gaston  Ridge 
J.  Ch.  525,  15  W.  R.  763,  16  L.  T.  Mill  &  Min.  Co.,  144  Cal.  542,  78  Pac. 
31g.  7;    Moon    v.    National    Wall    Plaster 

87.  Tate  v.  Parrish,  7  T.  B.  Mon.  Co.,  66  N.  Y.  Supp.  33,  31  Misc.  631, 
(Ky.)    325;    Rice  v.   Morehouse,    150       aff'd  57  N.   Y.  App.  Div.  621,  6/    N. 

Mass.  482,  23  N.  E.  229;  Call  v.  But-  Y.  Supp.  1140. 

trick,   4   Cush    (Mass.)    345;    Thomp-  89.  Beach    v.    Sterling    Iron    &    Z. 

son  v.   Behrmann,  37  N.  J.  Eq.  345;  Co.,  54  N.  J.  Eq.  65,  33  Atl.  286. 

Sherer    v.    Hodgson,    3    Rawle     (Pa.)  90.  Hunter  v.  Taylor  Coal  Co.,   16 

211;      Smith     v.      Ingersoll-Sergeant  Ky.  L.  Rep.  190. 

Rock  Drill  Co.,  27  N.  Y.  Supp.  907,  91'.  Elder   v.    Lykens    Valley   Coal 

705 


§  487      Remedies,  Parties,  Defenses  and  Damages. 

And  if  deposits  are  made  intentionally  by  a  mining  company  upon 
its  own  property  and  under  such  conditions  that  they  wash  down 
into  waters  of  a  stream  and  upon  lands  of  another  and  such  result 
might  reasonably  have  been  foreseen,  the  company  will  be  held 
liable  for  the  damage  sustained,  even  though  the  company  had  no 
other  suitable  place  for  such  deposits.92  Necessity  is  held  to  con- 
stitute no  defense;93  nor  does  profitableness  of  a  nuisance  prevent 
equitable  relief  ;94  and  mistake  of  law  is  no  defense  ;9°  nor  does  a 
license  to  keep  a  place  justify  making  it  a  nuisance  ;95a  and  the  fact 
that  city  officials  tolerate  the  maintenance  of  bawdy  houses  is  no 
defense  to  an  action  to  abate  the  same  as  a  nuisance  specially 
injurious  to'  adjoining  property.96  So  a  mere  parol  consent  for 
the  pollution  of  a  stream  or  the  creation  of  a  nuisance  vests  no 
right  not  capable  of  revocation  at  any  time.97  But  citizens 
who  have  made  connections  between  their  residence  and  a  sewer  in 
conformity  with  a  city  ordinance  cannot  be  enjoined  and  should 
not  be  made  parties  to  a  suit  brought  against  a  city  by  a  private 
person  injured  by  the  deposit  of  such  sewage.88    Where  a  cement 


Co.,  157  Pa.  490,  24  Pitts.  L.  J.  N.  S. 
195,  33  W.  N.  C.  333,  27  Atl.  545. 

92.  Columbus  &  H.  Coal  &  I.  Co. 
v.  Tucker,  48  Ohio  St.  528,  26  N.  E. 
630,  12  L.  R.  A.  577,  43  Alb.  L.  J. 
289,  25  Ohio  L.  J.  105. 

93.  Cushing  v.  Board  of  Health  of 
Buffalo,  13  N.  Y.  St.  R.  783;  Haughs 
Appeal,  102  Pa.  42,  48  Am.  Rep.  193. 

That  business  lawful  or  use 
necessary  may  be  immaterial. 
Loading  and  unloading  goods.  High- 
ways.    See  §  224  herein. 

94.  Redd  v.  Euna  Cotton  Mills, 
136  N.  C.  342,  67  L.  R.  A.  983,  48  S. 
E.  761. 

95.  State  v.  Gifford,  111  Iowa,  70G, 
82  N.  W.  1034.      (Liquor  nuisance.) 

95a.  State  v.  Tabler,  34  Ind.  App. 
393,  72  N.  E.  1039;  Koehl  v.  Schoen- 
hausen,  47  La.  Ann.  1316,  17  So.  809; 
Givens  v.  Van  Studdiford,  86  Mo.  149, 
56  Am.  Rep.  421;  State  v.  Morehead, 


22  R.  I.  272,  47  Atl.  545;  State  v. 
McGahan,  48  VV.  Va.  438,  37  S.  E. 
573. 

Effect  of  license.  See  §  232 
herein.  Compare        Dorrance       v. 

Simons,  2  Root  (Conn.)  208;  Com- 
monwealth v.  Greybill,  17  Pa.  Super. 
Ct.  514.  See  Reaves  v.  Territory,  13 
Okl.  396,  74  Pac.  951. 

96.  Ingersoll  v.  Rousseau,  35 
Wash.  72,  76  Pac.   713. 

97.  City  of  Kewanee  v.  Otley,  204 
111.  402,  413,  68  N.  E.  388. 

98.  Carmichael  v.  Texarkana,  94 
Fed.  561. 

As  to  authorized  nuisance. 
See  De  Give  v.  Seltzer,  64  Ga.  423; 
Sammons  v.  Gloversville,  175  N.  Y. 
346,  67  N.  E.  622,  74  N.  Y.  Supp. 
1145;  Miller  v.  Burch,  32  Tex.  208, 
5  Am.  Rep.  242;  People  v.  Crounse, 
51  Hun,  489,  21  N.  Y.  St.  R.  687. 


706 


Remedies,  Parties,  Defenses  and  Damages.         487 

plant  is  located  in  a  sparsely  settled  community  and  the  works 
a  they  are  operated  constitute  a  nuisance  bv  infringing  upon 
plaintiff's  rights  by  a  physical  interfere,,,,  with  her  p.wrtv'in 

asting  upon  it  considerable  dust  and  cinders,  materially  interfer 
,'  L  !r  en^eM  of  ^  and  with  her  physical  comfort,  and 

lowering  its  rental  value,  the  fact  that  the  injure  is  occasional 
and  the  damages  sustained  are  small,  will,  i,  ;  held  no  ,,  tify 
granting  a  permanent  injunction  where  great  damage  °  oM  be 
done  to  cos  ly  business  works."    Again,  a  civil  action  to  ran 

he  completion  of  piers  as  an  alleged  nuisance  in  a  navigable 
stream  ,s  not  barred  bj  the  ^  md  justiJsZrrt 

whetrhT,^'^,""11  ******  8»<*  --ance"  2nd 
ht,A  M       ,a,rged  **  "le  drf»danfs  miI1  dam  .    .  « 

standin:ftht,17Iat,°V8'f  *V«™  *»  P-petiiated/notwi  h! 
standing  the  defendant  had  been  indicted  for  the  same  nuisance 

rSi^  pr?  a,'ftrial' and  aithough  -  ™z% 

was  still  pending.  But  a  defense  to  an  action  for  the  diversion  „f 
water  is  good  which  alleges  that  the  water  was  pumPed  m  f  the 
creek  in  question  to  defendant's  ore  washers  and  furnaces  and 
that  the  water  so  pumped,  after  passing  through  said  wasue  J  was 
returned  to  said  creek  through  another  creek;  that  no  water™ 

to  the  rill  of  t     1  Wate-  S°  USed  ™S  USed  with  d»e  ^are 

to    he  nghts  of  the  lower  riparian  owner,  and  that  there  was  no 

material  diminution  of  the  amount  returned  from  that  diverted 

he  same  being  used  m  a  reasonable  manner  for  such  m,„„fl, 

mg  purposes.-     Under  an  English  decision,  the  LZfof  "an 

Legalized    and    statutory    nui  loo    Rmn.l  tt 

sances      sPP  8S  r  «,   ,,       .  '  bmaI1      v-      Harrington,       10 

sanees.     See  ||  6,-84  herein.  Idaho,  499j  ?9  Pae 

s^r^z^*- see  teriT6^'r;1rtighi-Hu"- 

99.Be„t,ey    ,.    Empire    PortIan(I       ^'?bL     i^87EU  'So  t 

N  J  E„   2,4   «  1       D  V\  Ut'er'  '9      3?6;  State  T-  5fcGi»>  «5  Vt    54      Tl 
-V  J.  fcq.  294,  97  Am.  Dec.  654;  Case-       Atl    430 

•*  77  Pao.  t055.    See,  5£  ,?£      So  "  "  *"«  <A'a"  19°5>'  39 
26  herein. 

707 


§  487      Remedies,  Parties,  Defenses  and  Damages. 

order  under  section  10  of  the  Rivers  Pollution  Prevention  Act, 
1876,  requiring  a  person  to  abstain  from  the  commission  of  an 
offense  against  the  provisions  of  that  act,  is  discretionary,  and  such 
an  order  ought  not,  as  a  matter  of  discretion,  to  be  made  against  a 
person  who  has  offended  against  the  act,  on  the  application  of 
another  party  who  is  also  an  offender  against  its  provisions,  and 
who,  by  means  of  such  an  order,  is  seeking  to  avoid  the  perform- 
ance of  duties  imposed  upon  him  by  statute.103  In  an  application 
for  a  provisional  or  preliminary  injunction  to  restrain  pollution  of 
a  stream,  the  defendant  will  not  be  restrained  until  he  has  been 
heard  in  his  defense  unless  the  facts  alleged  are  full,  sufficiently 
definite  and  clear  in  support  of  the  right  asserted.104 

1.03.  Kirkheaton    Local    Board    v.  104.  Mayor  &  City  Council  of  Bal- 

Ainley,  61  C.  J.  Q.  B.  812   (1892),  2  timore  v.  Warren  Mfg.  Co.,  59  Md. 

Q.  B.  274,  67  L.  T.  209,  41  W.  R.  99,  96. 
57  J.  P.  36. 


708 


Remedies,  Parties,  Defenses  and  Damages.  488 


SUBDIVISION"  IV. 

DAMAGES. 

SECTION  488.  Damages — Generally. 

489.  Permanent  injury — Depreciation  in  value — Rule — Instances. 

490.  Usable  value — Diminished  rental  value. 

491.  Usable  or  rental  value  continued — Decisions. 

492.  Usable  value — Rule  in  Bly  case. 

493.  Equity — Jury  trial — Discontinuance  of  nuisance  pendenti  lite — 

Rental  value — Landlord  and  tenant — Rule  in  Miller  case. 

494.  Damages  up  to  commencement  of  suit. 

495.  Recovery  of  entire  damages  in  one  action. 

496.  Same  subject — Other  statements  of  rule — Instances. 

497.  Direct  and  consequential  injury. 

498.  Nominal  damages. 

499.  Negligence — Actual  damages. 

500.  Duty  to  lessen  damages. 

501.  Actual  damages — Additional  damages. 

502.  Life  tenant — Rental  value — Additional  damages. 

503.  Punitive  damages. 

504.  Damages — Pleading — General  decisions. 

505.  Waiver  of  irregularities  in  taking  land  by  accepting  damages. 

§  488.  Damages  generally. — The  question  of  damages  has  been 
considered  at  some  length  elsewhere  herein,1  and  will  therefore  be 
only  briefly  discussed  here.  In  determining  the  amount  of  dam- 
ages recoverable  a  distinction  must  be  made  between  those  nui- 
sances which  cause  a  permanent  injury  and  those  which  are  of  a 
non-permanent,  abatable,  or  temporary  nature.  The  ordinary 
rule  in  the  former  case  is  that  depreciation  in  the  value  of  the 
property,  and  in  the  latter  case  the  depreciation  in  the  usable  or 
rental  value  of  the  property  is  the  basis  for  admeasurement  of  dam- 
ages. There  may,  however,  be  a  recovery  for  particular  injuries, 
even  in  addition  to  other  damages  proven.  In  certain  cases  the 
damages  may  be  nominal ;  and  exemplary  or  punitive  damages 
may  be  awarded  under  certain  circumstances.  The  cost  of  abate- 
ment or  removal  of  the  nuisance  may  also  be  awarded  where  the 

1.  See  §§    156,   170,    191,  211,   259, 
.J06,  307,  329  herein. 

709 


§  489      Remedies,  Parties,  Defenses  and  Damages. 

facts  so  justify.2     These  questions  and  principles  are  determined 
and  maintained  under  the  decisions  in  the  next  following  sections. 

§  489.  Permanent  injury  —  Depreciation  in  value — Rule — 
Instances. — Where  a  nuisance  causes  a  permanent  injury  to  prop- 
erty, the  general  rule  is  that  the  measure  of  damages  will  be  the 
depreciation  in  the  value  of  the  property,  that  is,  the  difference 
between  its  value  before  and  after  the  injury.3  So  where  by  the 
construction  and  maintenance  of  a  pool  of  water  near  plaintiff's 
land,  a  nuisance  is  created,  and  his  land  damaged  thereby,  his 
measure  of  damages  is  the  difference  in  the  value  of  the  property 
before  the  injury  and  its  value  immediately  thereafter.4  So  for  per- 
manent injury  to  land,  the  value  of  which  is  destroyed  for  agricul- 
tural purposes  by  the  deposit  of  refuse  and  poisonous  substances  on 
the  surface,  the  damages  recoverable  are  the  difference  between  the 
value  of  the  land  prior  to  the  injury  and  its  value  after  the  injury.5 
And  the  difference  in  the  value  of  property  occasioned  by  the  opera- 
tion of  gas  or  other  offensive  works  is  a  proper  factor  to  be  consid- 


2.  See  Joyce  on  Damages,  §  2149  et 
seq. 

Estimation  of  damages  by 
jury-  "If  from  the  evidence  in  this 
case,  and  under  the  instructions  of 
the  court,  the  jury  shall  find  the  is- 
sues for  the  plaintiff,  and  that  the 
plaintiff  has  sustained  damages  as 
charged  in  her  declaration,  then,  to 
enable  the  jury  to  estimate  the 
amount  of  such  damages,  it  is  not 
necessary  that  any  witness  should 
have  expressed  an  opinion  as  to  the 
amount  of  such  damages,  but  the 
jury  may  themcelves  make  such  esti- 
mate from  the  facts  and  circum- 
stances in  proof,  and  by  considering 
them  in  connection  with  their  own 
knowledge,  observation  and  experi- 
ence in  the  business  affairs  of  life." 
This  instruction  is  the  law,  and  has 
been  frequently  so  held  by  this  and 
the    Supreme    Court.      It  points   out 


the  only  method  that  could  bo 
adopted  for  assessment  of  damage* 
in  this  kind  of  a  case.  City  of  Litch- 
field v.   Whitenack,  78  111.  App.  366. 

3.  Joyce  on  Damages,  §  2150.  Ex- 
amine Johnson  v.  Porter,  42  Conn. 
234;  Cunningham  v.  Stein,  109  111. 
375;  Givens  v.  Von  Studdiford,  86 
Mo.  149,  56  Am.  Rep.  421,  4  Mo.  App. 
498;  Hentz  v.  Mt.  Vernon,  78  N.  Y. 
App.  Div.  515,  79  N.  Y.  Supp.  774; 
Garrett  v.  Wood,  55  N.  Y.  App.  Div. 
281,  67  N.  Y.  Supp.  122;  City  of 
Mansfield  v.  Hunt,  19  Ohio  Cir.  Ct. 
R.  488,  10  0.  C.  D.  567;  Daniel  v.  Ft. 
Worth  &  R.  G.  R.  Co..  96  Tex.  327,  72 
S.  W.  57S. 

4.  Missouri,  Kansas  &  Tex.  Ry.  Co. 
v.  Dennis  (Tex.  Civ.  App.,  1905),  84 
S.  W.  860. 

5.  Watson  v.  Colusa-Parrot  Min- 
ing &  Smelting  Co.  (Mont.,  1905), 
79  Pac.  14. 


no 


Remedies,  Parties,  Defenses  and  Damages.  490 

ered.6    Again,  where  damages  are  sought  for  maintaining  a  nuis- 
ance, by  reason  of  the  construction  of  a  sewer  over  plaintiff's  prem- 
ises and  the  creation  of  a  reservoir  or  pool  therein,  into  which  large 
quantities  of  offensive,  foul,  and  noxious  matter  is  alleged  to  be 
discharged,   creating   noxious   odors,    etc.,    and    interfering   with 
building  foundations,  the  measure  of  damages,  if  any,  would  be 
the  depreciation  in  the  value  of  the  property  where  it  is  averred  to 
be  unfit  for  use ;  and  it  is  error  in  such  case  to  admit  the  question, 
"  What  was  the  damage  sustained  by  reason  of  that  sewer  ?"  and 
the  answer,  "  I  would  put  the  damage  at  one  thousand  dollars," 
it  appearing  that  benefits  and  damages  had  been  assessed  to  plain- 
tiff's property,  so  that  if  he  was  aggrieved  in  such  assessment  he 
should  look  to  the  proper  statutory  remedy.7     In  an  action  to  re- 
cover for  the  diminished  enjoyment   and  value  of  property  by 
reason  of  an  alleged  nuisance,  a  distinction  exists  between  dam- 
ages resulting  from  the  diminished  value  of  land  where  an  in- 
tended sale  is  defeated  because  of  a  nuisance  and  damages  result- 
ing from  the  diminished  enjoyment  of  the  property  by  reason  of 
the  same  nuisance,  and  in  the  absence  of  any  loss  of  sale  the  only 
question  that  remains  is  the  extent  to  which  one  has  been  deprived 
of  the  enjoyment  of  his  land,  and  the  value  of  the  property  may  be 
considered  in  ascertaining  the  damages  caused  by  such  diminished 
enjoyment,  and  the  jury  must  estimate  the  damage  on  the  basis  of 
such  value  without  resorting  to  the  rate  of  interest  as  a  basis,  that 
is,  interest  on  the  diminution  of  value.8    But  in  an  action  to  abate 
a  nuisance,  a  cream  of  tartar  works,  near  dwelling  houses  alleged 
to  have  been  made  uncomfortable  and  unfit  for  habitation,  etc., 
depreciation  in  the  value  of  the  property  is  inadmissible  evidence 
upon  the  question  of  damages.9 

§  490.  Usable  value — Diminished  rental  value. — In  an  action 
at  law  to  recover  damages  for  a  nuisance  the  measure  of  damages 
is  the  difference  in  rental  value  of  the  property  before  the  com- 

6.  Ottawa  Gas  Light  &  Coke  Co.  8.  Moore  v.  Langdon,  6  Mackey 
v    Graham,  28  111.  73,   81    Am.  Dec.       (D.  C.)   6. 

263  9.  Meek     v.     De     Latour      (Cal., 

7.  City    of   Huntington   v.    Stemeh       1905),  83  Pac.  300. 
(Ind.  App.,  1906),  77  N.  E.  407. 

Til 


§  -190      Kemedies,  Parties,  Defenses  and  Damages. 

mencement  of  the  nuisance  and  afterwards  during  its  existence, 
down  to  the  time  of  the  commencement  of  the  action,  the  reason  of 
the  rule  being  that  the  action  at  law  being  for  the  recovery  of 
money  only,  a  judgment  therein  cannot  operate  as  a  bar  to  an 
action  in  equity  for  injunctive  relief,  nor  to  successive  future 
actions  for  damages.10  So  depreciation  in  rental  value  during  the 
maintenance  of  a  nuisance  down  to  the  commencement  of  the  suit 
is  the  measure  of  damages  where  the  nuisance  is  temporary.11 
And  in  Alabama  diminished  rental  value  may  be  recovered.12  So 
the  rental  value  of  land  may  be  recovered  as  damages  for  flooding 
land  through  a  continuing  injury.13  So  in  Georgia  evidence  of  de- 
preciation in  rental  value  is  admissible  to  show  damage  to  property 
occasioned  by  a  pool  of  stagnant  water  in  a  city.14  And  the  owner 
of  a  dwelling  house  which  he  himself  occupies  is  entitled  to  just 
compensation  for  the  discomfort  and  annoyance  occasioned  by  the 
maintenance  by  another  of  a  nuisance  on  adjoining  premises ;  and 
in  fixing  the  amount  of  damages  in  such  case  proof  of  deprecia- 
tion in  the  rental  value  of  the  house  furnishes  a  proper  guide  for 
determining  the  extent  of  the  annoyance  and  discomfort.15  In 
Iowa  the  measure  of  damages  for  a  continuing  nuisance  is  ordi- 
narily the  loss  in  the  use  of  the  land  caused  thereby,  and  such 
special  damage  as  may  result  therefrom,  and  not  the  depreciation 
of  the  market  value  of  the  land,  for  the  nuisance  may  be  abated 

lO.  Van  Veghten  v.  Hudson  River  1093,  74  N.  Y.   St.   R.  274,  aff'g   11 

Power  Co.,  92  N.  Y.  Supp.  956,  958,  Misc.   242,   G5   N.   Y.   St.   R.   305,   32 

per   Chester,    J.,   relying   upon   Uline  N.  Y.  Supp.  164,  and  aff'd  157  N.  Y. 

v.  New  York  C.  &  H.  R.  R.  Co.,  101  718. 

N.  Y.  98,  54  Am.  Rep.  661,  4  N.  E.  1.1.  Shively  v.  Cedar  Rapids.  Iowa 

536.  Falls  &  N.  W.  R.  Co.,  74  Iowa  169, 

Wlien   lessors   and   not   lessees  7  Am.  St.  Rep.  471,  37  N.  W.  133. 
entitled  to  damages.    Where  a  nui-  12.  City   of   Eufaula   v.    Simmons, 

sance  injurious   to  property   when   it  86  Ala.  575,  6  S.  47. 
existed  when  it  was  leased  and   the  13.  Atchison,  Topeka  &  Santa   Fe 

probability  exists  that  less  rent  was  Ry.  Co.  v.  Jones,  110  111  App.  626. 
for  that  reason  paid  therefore  by  the  14.  Savannah,   Florida   &   Western 

lessees  the  lessors  and  not  the  lessees  Ry.  Co.  v.  Parrish,  117  Ga.  893,  45  S. 

are  entitled  to  the  damages  resulting  E.  280. 

from  such  nuisance.     Dumois  v.  Hill,  15.  Swift  v.  Broyles,  115  Ga.  885, 

2  N.  Y.  App.  Div.  525,  37  N.  Y.  Supp.  42  S.  E.  277. 

712 


Remedies,  Parties,  Defenses  and  Damages.  490 

some  time.18  Under  an  Ohio  decision  where  the  nuisance  is  of 
such  a  character  as  can  be  removed  by  removing  its  cause,  or  one 
for  the  continuance  of  which  a  second  or  third  action  may  be 
brought,  or  one  which  is  abatable  and  not  permanent,  the  measure 
of  damages  is  the  amount  that  the  owner  is  injured  in  its  use;  and 
the  rule  that  the  measure  of  damages  is  the  difference  between  the 
market  value  of  the  land  before  and  after  the  occurrence  of  the  in- 
jury does  not  apply.17  So  where  a  sewage  disposal  plant  constitutes 
a  nuisance,  such  plant  being  near  to  plaintiff's  residence  and  board- 
ing house,  depreciating  the  rental  value  thereof,  the  measure  of 
damages  is  the  difference  between  the  rental  value  of  plaintiff's 
property  prior  to  the  erection  and  maintenance  of  such  disposal 
works  and  its  value  after  they  were  erected.18  Again,  a  plaintiff, 
who  was  a  tenant  and  kept  a  boarding  house,  was  injured  by  a 
nuisance,  which  consisted  of  vibrations,  noises,  smoke  and  gases 
resulting  from  an  electric  light  plant  immediately  in  the  rear  of 
her  premises,  has  her  election  to  have  her  damages  measured  by  the 
depreciation  in  rental  value  of  the  premises  as  a  whole,  or  by  a 
loss  in  the  usable  value  of  the  premises,  and  the  same  rule  would 
apply  to  the  owner  of  the  premises.19  If  an  action  is  brought  by 
the  occupants  of  premises  as  occupants,  by  the  persons  in  posses- 
sion who  have  in  fact  suffered  injury  and  upon  the  proven  facts 
there  is  a  sufficient  foundation  for  a  verdict,  then  the  jury  may 
award  damages  as  in  their  discretion  they  may  deem  proper ;  but 
where  the  action  is  brought  not  by  the  plaintiffs  in  their  relation 
as  occupants  and  sufferers,  but  as  owners  of  the  premises  rented, 
the  measure  of  damages  would  be  whatever  injuries  they  have  sus- 
tained as  owners,  in  the  diminution  of  rents,  in  the  failure  to  rent 
the  same,  for  injury  to  property  or  for  the  cost  of  repairs,  and  only 
such  damages  as  are  proven  can  they  as  owners  recover.  The  au- 
thorities which  recognize  this  distinction  are  numerous.20     Under 

1,6.  Vogt  v.   City  of  Grinnell,   123  App.    Div.   371.         (Action  for   dam- 
Iowa  332,  98  N.  W.  782.  ages.) 

17.  Stroth        Brewing        Co.        v.  20.  Dieringer     v.     Wehrman,      12 
Schmitt,  25  Ohio  Cir.  Ct.  R.  231.  Wkly.    Law    Bull.     (Ohio)     222,    per 

18.  Gerow    v.    Village    of   Liberty,  Smith,     J.,     citing     Frank     v.     New 
106  N.  Y.  App.  Div.  357.  Orleans  &  Carrolton  Rd.   Co.,  20  La. 

1,9.  Hoffman     v.     Edison     Electric       Ann.  25;   Pike  &  Co.  v.  Doyle,  19  La. 
Illuminating  Co.  of  N.  Y.,  87  N.  Y.       Ann.   362;  Worcester  v.   Great  Falls 

713 


§  4-91      Remedies,  Parties,  Defenses  and  Damages. 

an  Iowa  decision  it  is  declared  that  the  test  is  not  the  value  of 
the  use  of  property  when  not  devoted  to  any  use  whatever,  but 
when  occupied  for  the  purposes  for  which  the  property  is  suitable 
in  its  then  condition.  And  where  one  intends  to  erect  buildings 
on  the  property,  it  is  not  the  value  to  him  for  that  purpose,  but 
the  value  of  the  use  of  which  he  has  been  deprived  by  the  nuisance 
or  obstructions  generally  that  constitute  the  measure  of  damages. 
So  where  the  rental  value  with  the  obstructions  existing  is  very 
little  but  without  the  nuisance  it  would  be  of  some  value,  an  action 
can  be  sustained.21  As  to  a  nuisance  capable  of  abatement,  the  de- 
preciation of  the  value  of  the  property  can  nave  no  applicability. 
The  settled  rule  of  damages  in  such  cases  is  the  difference  in  rental 
value  with  and  without  the  nuisance.22 

§  491.  Usable  or  rental   value   continued  —  Decisions.  —  In 

an  action  to  recover  damages  for  the  maintenance  of  a  nuisance 
in  operating  an  electric  plant,  in  which  the  complaint  alleged, 
the  fouling  of  plaintiff's  hotel  and  the  injury  of  the  furniture  by 
great  quantities  of  soot,  cinders,  etc.,  escaping  from  the  defend- 
ant's premises  and  pervading  those  of  the  plaintiff,  in  which 
evidence  was  given  to  sustain  such  allegation,  the  court  may  prop- 
erly refuse  to  charge  a  requested  instruction,  that  the  measure  of 
damages  is  the  actual  diminiution  in  rental  value  by  reason  of  de- 
fendant's acts.  And  where  there  is  evidence  showing  depreciation 
in  the  rent  of  the  room^  in  the  hotel,  which  was  competent  as 
bearing  upon  the  question  as  to  whether  there  was  a  diminution  in 
the  rental  value  of  the  whole  premises,  a  request  to  charge  that 

Mfg.   Co.,   41    Me.    159,   66   Am.   Dec.  In  addition  to  depreciation  of 

217;      Emory    v.    Lowell,    109    Mass.  rental   valne   there  is  authority  to 

197;   Jutte  v.  Hughes,  67  N.  Y.  267;  the  effect  that  the  owner  of   land   is 

Francis  v.  Schwellkopf,  53  N.  Y.  155;  not  entitled  to   recover  because   of  a 

Wood  on  Nuisance,  §  853.  prejudice   which    exists    against    the 

21.  Pettit  v.  Incorporated  Town  property  by  reason  of  a  nuisance, 
of  Grand  Junction,  Greene  County,  even  in  a  case  where  it  is  a  perma- 
119  Iowa,  352,  93  N.  W.  381.  nent  one.       City   of   San  Antonio   v. 

22.  City      of      San      Antonio      v.  Mackey's  Est.,  22  Tex.  Civ.  App.  145, 
Mackey's    Est.,    22    Tex.    Civ.    App.  54  g    w   33   per  Fey   j       ( j)evosit  0f 
145,  54  S.  W.  33    (Deposit  of  garbage  garbage  and  refuge  matter  Qn  ]and  } 
and  refuse  matter  on  land.) 

714 


Remedies,  Parties,  Defenses  and  Damages.  491 

"  loss  of  income  from  business  is  not  provable  as  an  element  of 
damages,"  is  properly  refused.  As  to  the  first  request,  however, 
the  court  said :  "  This  request  undoubtedly  states  the  general  rule, 
and  the  diminution  in  rental  is  one  of  the  items  of  damages  ap- 
plicable to  this  case.  But  the  trouble  with  the  request  is  that  it  is 
not  the  only  item  of  damage  applicable,  .  .  .  While  diminution 
in  rental  value  becomes  an  item  of  damages  which  the  jury  might 
award,  in  this  case  there  has  been  alleged  and  evidence  given  tend- 
ing to  prove  other  independent  items  of  damages  not  covered  by  the 
diminution  in  rental  value  of  the  premises,"  and  as  to  the  second 
request  it  was  said:  "There  may  be  a  loss  of  income  and  at  the 
same  time  an  equal  lessening  of  the  expenses  of  the  business,  so 
that  the  real  profits  would  remain  the  same.  This  request,  there- 
fore, does  not  present  the  question  as  to  whether  the  loss  in  net 
profits  from  a  business  is  provable  as  an  item)  of  damages.  In 
this  case  the  rent  of  rooms  or  apartments  in  an  hotel  was  a  part 
of  the  business  in  which  the  plaintiff  was  engaged.  We  think  that 
the  evidence  showing  depreciation  in  the  rent  of  the  rooms  in 
the  hotel  from  year  to  year  was  competent  as  bearing  upon  the 
question  as  to  whether  there  was  a  diminution  in  the  rental  value 
of  the  whole  premises,  and  that  the  request  to  charge  under  the  cir- 
cumstances was  properly  refused."  23  In  a  recent  Indiana  case,  it 
is  held  that  in  an  action  for  damages  for  the  pollution  of  a  stream, 
where  it  is  apparent  that  the  theory  of  the  complaint,  as  tested  by 
the  general  scope  thereof,  is  to  recover  damages  for  injuries  due 
to  a  cause  of  an  impermanent  nature  or  character  or  what,  in  other 
words,  is  attributable  to  a  temporary  nuisance,  or  one  which  may 
be  abated,  and  such,  pollution  of  the  stream  constitutes  a  con- 
tinued nuisance  rather  than  a  permanent  injury  to  plaintiff's  prem- 
ises, the  depreciation  of  the  rental  value  is  an  essential  element  of 
the  damages  sustained.  But  depreciation  or  diminution  of  rental 
value  of  premises  cannot  be  regarded  in  the  nature  of  special  dam- 
ages, and,  therefore,  do  not  fall  within  the  rule  that  such  dam- 
ages be  particularly  shown  or  stated  in  the  complaint  in  order  that 
evidence  on  the  trial  miay  be  admitted  to  prove  them,  and  the 

23.  Pritchard  v.  Edison  Electric 
Ilium.  Co.,  179  N.  Y.  364,  72  N.  E. 
243,  aff'g  92  App.  Div.  178. 

715 


§  491      Remedies,  Parties,  Defenses  and  Damages. 

averments  may  sufficiently  show  that  such  damages  naturally  or 
necessarily  accrued  or  resulted  from  defendant's  wrongful  acts, 
so  that  the  plaintiff  would  be  entitled  to  recover  therefor,  as  where 
the  averments  disclose  that  by  reason  of  poisonous  acids,  etc.,  which 
have  been  spread  over  plaintiff's  lands  by  the  polluted  waters  of 
the  creek  in  controversy,  and  that  grass  and  other  crops  will  not 
grow  thereon,  and  that  the  lands  have,  to  a  great  extent,  been 
rendered  unfit  for  agricultural  purposes  and  the  raising  of  stock. 
"  Diminution  of  the  rental  value  of  land  and  the  loss  of  some  par- 
ticular rent  or  rents  are  not  virtually  of  the  same  character  or 
nature  and  must  not  be  confused  with  each  other  on  the  ques- 
tion of  alleging  special  damages  in  a  pleading."  And  where  the 
facts  alleged  show  the  pollution  of  a  stream  or  creek,  but  they  do 
not  necessarily  constitute  a  nuisance  of  a  permanent  character,  but 
one  that  may  be  abated,  the  measure  of  damages  is  that  loss  or 
diminution  of  rental  value  of  the  premises  occasioned  during  the 
time  the  nuisance  is  maintained  to  the  commencement  of  the 
action.24  Again,  in  an  Iowa  case  the  contention  of  defendant  was 
that  the  court  erred  in  permitting  plaintiff  to  show  the  value  of  his 
property,  both  before  and  after  the  establishment  of  the  nuisance, 
for  the  reason  that  the  matters  complained  of  were  not  permanent 
in  character  and  could  easily  be  ababated.  Defendant  also  insisted 
that  the  trial  court  adhered  to  the  wrong  measure  of  damages 
both  in  the  introduction  of  testimony  and  in  its  instructions.  It 
was  further  claimed  that  the  instructions  given  were  not  supported 
by  the  evidence  and  were  improper,  in  any  view  of  the  case. 
A  decree  in  equity  had,  on  Xovember  16th,  1901,  been  obtained  by 
the  same  plaintiff  for  abatement  of  the  nuisance  pursuant  to  a  set- 

24.  Muncie    Pulp    Co.    v.    Keesling  v.   Cedar  Rapids,  I.   F.   &   N.   R.   Co.. 

(Ind.,    1906),   76   N.   E.    1002,    citing  74   Iowa,   169,  37  N.   W.    133,  7  Am. 

as  to  the  measure  of  damages,  Swift  St.  Rep.  471;   Hoffman  v.  Flint  &  P. 

v.  Broyles,   115  Ga.  885,  58  L.  R.  A.  M.  R.  Co.,   114  Mich.   316,   72  N.  W. 

390,  42  S.  E.  277;  Muncie  Pulp   Co.  167;  Wallace  v.  Kansas  City,  etc.,  R. 

v.  Martin,  164  Ind.  30,  72  N.  E.  882;  Co.,    47    Mo.   App.   491;      Threatt   v. 

Weston  Paper   Co.  v.  Pope,   155   Ind.  Brewer  Mining  Co.,  49   S.  C.   95,   26 

394,  56  L.  R.  A.  899,  57  N.  E.  719;  S.  E.  970;   Watts  v.  Norfolk  &  W.  R. 

Indiana,  B.   &   W.   R.   Co.   v.   Eberle,  Co.,  39  W.  Va.  196.  23  L.  R.  A.  674. 

110  Ind.  542,   11  N.  E.  467;  Shirley  19  S.  E.  521,  45  Am.  St.  Rep.  894. 

716 


Remedies,  Parties,  Defeases  and  Damages.  492 

tlement  and  compromise,  and  during  the  trial  the  court,  in  ruling 
on  an  objection,  remarked  that  he  should  instruct  the  jury  thai 
said   decree   constituted   "  settlement,  of  all  damages  up  to  that 
time;"    and    in     the    first    instruction    it    said    that    plaintiff, 
in    order    to    recover,    must    show    that    since    said    16th    day 
of    November,    1901,    he    had    suffered    the   inconveniences    and 
injuries  complained  of,  or  some  of  them,  in  consequence  of  defend- 
ants still  maintaining  the  nuisance  charged,  and  that  if  he  had  so 
shown,  he  would  be  entitled  to  such  sum  as  would  fully  compensate 
him  for  all  the  damages  he  had  sustained,  and  referring  to  the  rule 
for  the  admeasurement  of  damages,  said :    (3)    "If  you  find  for 
the  plaintiff  the  measure  of  his  recovery,  if  any,  is  between  the 
fair  and  reasonable  value  of  the  use  of  his  home  as  it  existed  prior 
to  the  establishment  of  the  .alleged  nuisance  and  after  the  premises 
were  rendered  offensive  by  the  noxious  odors  from  defendant's  out- 
buildings, located  on  the  adjoining  lot,  if  you  so  find,  together 
with  such  other  and  further  sum  as  will  reasonably  compensate 
him  for  the  inconvenience  and  discomfort  which  he  has  suffered, 
if  any,  in  being  deprived  of  his  home  by  and  in  consequence  of 
the  continuance  of  the  alleged  nuisance.     (4)   If  you  find  for  the 
plaintiff,  he  will  be  entitled  to  recover  damages  for  the  loss  sus- 
tained by  him  in  the  comfortable  use  and  enjoyment  of  his  home 
since  November  16,  1901,  and  such  further  sum  as  in  your  judg- 
ment will  compensate  him  for  the  inconvenience  and  discomfort 
suffered  in  the  deprivation  of  the  comfortable  enjoyment,  of  his 
homestead   by   himself   and  family  during  said   period,   to  wit, 
November  16,   1901."     The  judgment  was  reversed  and  it  was 
held  that  the  measure  of  damages  in  an  action  for  nuisance,  not 
of  a  permanent  character,  is  the  difference  in  the  value  of  the  use 
of  the  property  as  it  existed  prior  and  subsequent  to  the  nuisance ; 
and  the  admission  of  evidence  as  to  the  difference  in  value  of  the 
property  itself  was  error.25 

§  492.  Usable  value — Rule  in  Bly  case.  —  The  measure  of 
damages,  where  a  lessee  of  a  building  is  injured  by  a  nuisance,  is 
the  diminution  in  the  usable  value  of  the  premises  to  the  occupant 

25.  Holbrook  v.  Griffis,   127   Iowa, 
505,  103  N.  W.  479. 

717 


§  492      Remedies,  Pakties,  Defenses  and  Damages. 

caused  by  the  wrongful  act,  and  by  "  usable  value  "  is  meant  the 
value  of  the  use  of  the  premises  to  the  occupant  as  distinct  from 
the  rental  of  the  premises  reserved  in  the  lease  by  the  owner  to  the 
tenant.26  This  rule  was  applied  to  a  case  where  defendant  erected 
a  building  and  placed  therein  steam  boilers,  steam)  engines,  steam 
pipes,  dynamos,  electrical  machines,  and  other  machinery  for  the 
purpose  of  generating  electricity  for  lighting  and1  other  purposes, 
and  the  building  which  plaintiff  leased  and  conducted  as  a  board- 
ing house  was  affected  by  the  continual  vibration  caused  by  de- 
fendant's plant,  it  appearing  that  the  chandeliers  and  windows 
continually  shook  and  rattled ;  that  the  windows  had  to  be  plugged 
up;  that  such  vibrations  were  continuous  day  and  night;  that 
atmospheric  conditions  were  changed ;  that  smoke  and  soot  fell  in 
the  yard  and  came  in  the  windows ;  that  cinders  and  a&'hes  dam- 
aged the  curtains ;  and  that  plaintiff's  receipts  as  a  boarding  house 
keeper  constantly  decreased.27 


26.  Bly  v.  Edison  Electric  Illumi- 
nating Co.,  Ill  N.  Y.  App.  Div.  170. 
See,  also,  Bates  v.  Holbrook,  89  N. 
Y.  App.  Div.  548,  appeal  dismissed 
178  N.  Y.  568. 

27.  Bly  v.  Edison  Electric  Illumi- 
nating Co.,  Ill  N.  Y.  App.  Div.  170. 
Ingraham,  J.,  said  in  relation  to 
prior  trials  of  this  case:  "The  na- 
ture of  this  action  and  the  questions 
presented  are  stated  in  the  opinion 
of  this  court  (54  App.  Div.  427)  and 
in  the  Court  of  Appeals  (172  N.  Y. 
1 )  upon  a  former  appeal  from  a 
judgment  in  lavor  of  the  plaintiff. 
It  seems  that  two  actions  were  com- 
menced; one  in  equity  for  an  in- 
junction to  restrain  the  continuance 
of  a  nuisance,  and  the  other  at  law 
to  recover  damages  for  the  mainte- 
nance of  the  nuisance.  The  equity 
action  having  been  brought  on  for 
trial,  resulted  in  a  judgment  award- 
ing plaintiff  an  injunction  and  $4,000 
damages.       From  that  judgment   de- 


fendant appealed  to  this  court,  where 
the  judgment  was  modified  by  re- 
ducing the  amount  of  damage  to  six 
cents,  and  as  thus  modified  alfirmed. 
Upon  appeal  to  the  Court  of  Appeals 
the  action  of  this  court  in  reducing 
the  damages  was  disapproved,  but 
the  judgment  was  reversed  on  ac- 
count of  an  error  of  the  trial  justice 
and  a  new  trial  ordered.  The  plain- 
tiff's lease  of  the  premises  having  ex- 
pired, these  two  actions  were  consoli- 
dated and  tried  as  an  action  at  law 
wdiich  resulted  in  a  verdict  for  the 
plaintiff  for  $4,000  as  the  damages 
that  she  had  sustained  in  consequence 
of  the  nuisance  maintained  by  the  de- 
fendant, and  from  that  judgment  the 
defendant  now  appeals.  This  court 
upon  the  former  appeal  affirmed  the 
judgment  of  the  court  below  in  so  far 
as  it  found  that  the  defendant  main- 
tained a  nuisance,  and  the  finding  of 
the  jury  to  the  same  effect  is.  ac- 
cording to  our  former  decision,  sus- 


'IS 


Remedies,  Parties,  Defenses  and  Damages.  493 

§  493.  Equity — Jury  trial — Discontinuance  of  nuisance  pen- 
dente lite — Rental  value  —  Landlord  and  tenant— Rule  in  Miller 
case. — In  a  late  case  in  New  York28  it  is  decided  that  where  an 
action  is  properly  brought  in  equity  the  defendant  is  not  entitled 
to  a  jury  trial  as  of  right,  and  from  the  statement  of  facts  it  is 
found  that,  as  the  plaintiffs  were  entitled  to  equitable  relief  when 
the  action  was  commenced,  the  discontinuance  of  the  nuisance 
would  not  prevent  retaining  the  case  and  awarding  damages.  The 
important  point  of  the  case,  however,  is  that  which  holds  that  the 
landlord  cannot  recover  for  any  depreciation  in  rental  value, 
occasioned  by  a  nuisance,  since  a  tenant,  under  a  lease,  made  dur- 
ing the  existence  of  a  nuisance,  is  entitled  to  recover  the  deprecia- 
tion of  value  of  occupation  of  the  premises,  and  the  defendant  can- 
not be  subjected  to  a  double  recovery  for  the  same  injurv.  Tne 
case  is,  therefore,  of  sufficient  importance  to  be  given  in  full.  The 
facts  were  as  follows :  "  The  plaintiffs  by  the  institution  of  this 
action  have  sought  to  restrain  the  defendant  from  continuing  a 
nuisance,  created  through  the  maintenance  and  operation  of  a  plant 
for  the  supply  of  electric  light  and  power,  whereby  their  property 
in  neighboring  dwelling  houses  has  been  injuriously  affected. 
They  further  demanded  judgment  for  damages  already  sustained. 
The  property  was  in  the  occupancy  of  a  tenant  holding  under  a 
lease  by  the  plaintiffs.  The  trial  court  formulated  its  decision  in 
findings  of  facts  and  conclusions  of  law,  and  the  judgment  recov- 
ered by  the  plaintiffs  thereupon  was  affirmed  by  the  appellate 

tained  by   the   evidence.     ...     It  the  judgment  as  to   damages  by  the 

follows  that  the  judgment  and  order  Appellate   Division   and  an   oversight 

appealed     from     should    be     affirmed  of  the  trial  court  as  to  the  period  for 

with  costs."  which    plaintiff    was    entitled    to    re- 

The  Bly  case  in  172  N.  1,  which  re-  cover  damages, 
versed  54  App.  Div.  427,  holds  that  28.  Miller  v.  Edison  Electric  II- 
a  tenant  in  possession  of  premises  luminating  Co.,  184  N.  Y.  17  (Ad- 
affected  by  a  nuisance  under  a  lease  vance  Sheets  No.  270,  March  3,  1906) 
made  during  the  existence  of  the  nui-  62  Cent.  Law  J.  243,  32  National 
sance,  can  maintain  an  action  to  Corp.  Rep.  268,  rev'g  97  N.  Y.  App. 
abate  the  nuisance  and  recover  the  Div.  638,  which  aff'd  66  N.  Y.  App. 
damages  sustained  therefrom,  as  well  Div.  470,  73  N.  Y.  Supp.  376,  which 
as  could  the  owner  of  premises  who  rev'd  33  Misc.  664.  68  N.  Y.  Supp. 
comes  into  a  nuisance.  The  princi-  90.  See  78  App.  Div.  390,  80  N.  Y. 
pal  points  upon  which  the  reversal  Supp.  319. 
was    based   were   the   modification   of 

719 


§493      Remedies,  Parties,  Defenses  and  Damages. 

division.     The  facts  found,  so  far  as  they  need  to  be  mentioned, 
show  that  the  plaintiffs  became  the  owners  of  the  premises  in 
question  some  years  prior  to  1888,  in  which  year  the  defendant 
constructed  upon  premises  adjacent  to  those  of  the  plaintiffs  a 
power  house,  equipped  with  machinery  and  appliances  necessary 
for  the  purpose  of  generating  electricity  to  be  supplied  to  the 
public  for  lighting  or  for  power.     In  1890  the  plaintiffs  leased 
their  property  for   a  term  of  five  years,  receiving  a  rental  of 
$15,000  a  year  and  certain  privileges.     Shortly  prior  to  the  expira- 
tion of  the  term  of  this  lease  the  premises  were  again  leased  to  the 
same  tenant  for  another  term  of  five  years  from  May  1,  1895,  at 
the  rental  of  $12,000  a  year,  with  the  reservation  of  the  same  priv- 
ileges as  in  the  previous  lease.     In  1900  the  premises  were  again 
leased  at  a  less  rental,  with  the  reservation  of  some  additional 
privileges,  and  with  a  right  to  the  lessors  to  share  in  the  profits 
of  the  hotel  business  conducted  by  the  lessee.     After  the  construc- 
tion of  its  power  house  the  defendant's  operations  caused  '  soot, 
cinders,  ashes,  steam  or  water  condensing  from  steam '  to  be  dis- 
charged upon  plaintiffs'  premises.      Noises,   jars  and  vibrations 
resulted  from  the  operation  of  the  machinery  which  impaired  the 
peaceful  enjoyment  of  the  premises  and  affected  their  rental  value. 
The  court  further  found  that,  as  the  machinery  was  used  at  the 
time  of  the  trial,  no  injury  was  being  worked  to  the  plaintiffs' 
property,  and  '  that  it  was  improbable  that  it  would  be  so  used  as 
to  work  injury  in  the  future,'  but  that,  as  the  plaintiffs  were  en- 
titled to  the  equitable  relief  prayed  for  when  the   action  com- 
menced, the  court  would  retain  the  case  and  award  to  them  their 
damages.      Judgment    was   directed   for   the   plaintiffs   for   such 
damages  in  the  amount  of  $4,500.     The  court  decided  that  the 
plaintiffs  failed  to  establish  that  they  suffered  any  damage  after 
the  year  1900,  and,  though  the  rental  for  the  premises  reserved  to 
them  in  the  new  lease  of  that  year  was  less  than  that  for  the  prior 
term,  the  difference  could  be  accounted  for  otherwise  than  by  charg- 
ing it  to  the  defendant's  acts.     This  was  explained  in  the  changed 
character  of  the  locality  and  in  the  fact  that  the  lease  was  not  only 
provided  that  the  plaintiffs  should  have  a  share  of  the  profits,  but 
that  they  should  enjoy  greater  privileges  than  formerly.     These 
findings  of  the  trial  court  have  sufficient  support  in  the  evidence. 

720 


Remedies,  Parties,  Defenses  and  Damages.       §  493 

"  Cullen,  Ch.  J. :  I  adopt  Judge  Gray's  statement  of  facts 
and  I  agree  with  him  in  the  position  that  this  action  was  properly 
brought  in  equity;  that  it  was  triable  by  the  court,  and  that  the 
defendant  was  not  entitled  to  a  jury  trial  as  of  right.  I  am  unable, 
however,  to  concur  in  the  view  that  the  plaintiffs  were  properly 
awarded  damages  for  diminution  in  the  rental  value  of  the  prop- 
erty. The  plaintiffs  were  in  possession  of  the  premises  during  no 
part  of  the  period  for  which  damages  have  been  recovered,  but  the 
same  were  in  the  occupation  of  their  tenants  under  a  lease  for  a 
term  of  years.  One  of  these  leases  expired  during  the  existence 
of  the  nuisance,  and,  as  the  trial  court  has  found,  by  reason  of  the 
nuisance  the  plaintiffs  were  compelled  to  rent  the  premises  for  a 
new  term  at  a  reduced  rent.  It  is  for  this  loss  of  rent  that  damages 
have  been  awarded.  The  question  as  to  which  party,  the  landlord 
or  his  tenant,  is  entitled  to  recover  for  depreciation  of  the  rental 
value  by  the  existence  of  a  nuisance  has  involved  the  courts  in 
much  perplexity.  In  the  elevated  railroad  cases  it  has  been  settled 
that  in  the  case  of  a  lease  made  after  the  erection  and  operation  of 
the  railroad  the  landlord,  not  the  tenant,  is  entitled  to  recover  for 
such  depreciation.  Kernochan  v.  K.  Y.  Elevated  R.  R.29  In  the 
Kernochan  case  there  is  an  elaborate  discussion  of  the  question 
by  Chief  Judge  Andrews.  A  careful  analysis  of  the  opinion  of 
the  learned  judge  will  show  that  the  decision  proceeded  on  the 
ground  that  the  elevated  road  was  a  permanent  structure  and  in- 
tended to  be  so  maintained ;  that  it  was  constructed  in  the  street 
under  legislative  authority,  and  that  as  ample  authority  was 
granted  to  condemn  any  property  rights  on  which  it  might  trespass 
the  lessor  had  no  absolute  remedy  to  compel  the  removal  of  tlie 
structure,  since  the  right  of  condemnation  can  at  any  time  be  exer- 
cised by  the  defendants.  The  learned  judge  said:  '  It  is  also  a 
necessary  deduction  from  the  circumstances  attending  the  making 
of  ordinary  leases  of  improved  property,  executed  after  the  con- 
struction of  the  elevated  railroad,  that  the  right  to  recover  damages 
is  vested  exclusively  in  the  lessor.'  To  the  doctrine  of  this  case 
the  court  has  steadily  adhered.  When,  however,  the  doctrine  was 
invoked  to  defeat  the  right  of  a  tenant  to  recover  damages  against 
the  present  defendant  for  the  very  same  acts  which  constitute  a 

29.   128  N.  Y.  559. 

721 


§  493      Remedies,  Parties,  Defenses  and  Damages. 

nuisance  in  the  case  now  before  us,  it  was  held  that  the  rule  in 
the  elevated  railroad  cases  did  not  apply.     In  Ely  v.  Edison  Elec- 
tric 111.  Co.,  a  tenant,  hiring  after  the  nuisance  was  created,  re- 
covered the  depreciation  in  the  rental  value  of  the  premises.     The 
appellate  division,  citing  the  authority  of  the  Kernochan  case, 
reduced  the  award  to  a  nominal  sum,  holding  that  the  tenant  was 
not  entitled  to  recover  diminution  in  rental  value.30     On  appeal 
to  this  court  the  judgment  of  the  appellate  division  was  reversed, 
though  a  new  trial  was  ordered  because  the  trial  court  had  awarded 
damages  for  a  period  anterior  to  six  years  before  the  commence- 
ment of  the  action.31    This  court  said,  per  Werner,  J. :    '  We  think 
the  Kernochan  case  has  no  application  to  a  case  like  the  one  at  bar, 
and  this  without  reference  to  the  fact  that  it  appears  affirmatively 
that  the  rental  paid  by  the  plaintiff  was  the  same  during  the  exist- 
ence of  the  nuisance  as  it  was  before.     The  elevated  railroad  cases 
to  which  class  the  Kernochan  case  belongs,  are  sui  generis.     They 
are  governed  by  the  principles  which  apply  to  no  other  class  of 
cases.'    The  elaborate  discussion  of  the  question  by  Judge  Werner 
leaves  nothing  to  be  now  added.     It  is  sufficient  to  say  that  that 
case  expressly  held  that  a  tenant  under  a  lease  made  during  the 
existence  of  the  nuisance  was  entitled  to  recover  the  depreciation 
of  the  value  of  the  occupation  of  the  premises.     It  is  said  to  be 
the  settled  rule  of  law  '  that  where  the  wrongful  act  affects  differ- 
ent interests  in  the  same  property  the  owner  of  each  interest  may 
have  his  separate  action  against  the  wrongdoer.     Landlord  and 
tenant  have  separate  actions,  and  each,  if  injured  therein,  may 
have  redress,  the  one  for  the  injury  to  the  reversion,  the  other 
for  the  injury  inflicted  in  diminishing  his  enjoyment  of  the  prem- 
ises.'    This  statement  is  doubtless  correct,  but  under  this  rule  '  to 
entitle  a  reversioner  to  maintain  an  action,  the  injury  must  be 
necessarily  of  a  permanent  character,   and  that  a  presumed  in- 
tention to  continue  the  nuisance  is  not  sufficient,  even  where  there 
is  evidence  that  the  premises  would  sell  for  less  if  the  nuisance 
were  continued.'      (Mott  v.   Shoolbred,32  opinion  of   Sir  George 
Jessel,  M.  R. ;  see  also  cases  cited  in  Judge  Werner's  opinion.) 
Here  the  only  injury  found  by  the  trial  court  is  to  the  enjoyment 

30.  54  N.  Y.  App.  Div.  427.  32.  20  Eq.   Cases,  22. 

31.  172  N.  Y.  1. 

722 


Remedies,  Parties,  Defenses  and  Damages.       §  493 

and  occupation  of  the  premises.  That  does  not  affect  the  re- 
versioner. Had  the  trial  court  found  that  the  operation  of  defend- 
ant's light  plant  cracked  the  walls  or  injured  the  structure,  such 
damage  would  be  of  a  permanent  character  and  the  reversioner 
entitled  to  recover.  In  the  present  case,  however,  not  only  is  there 
no  permanent  injury  to  the  plaintiffs'  buildings,  but  the  defend- 
ant's plant  did  not  constitute  the  nuisance,  but  its  operation,  and 
such  operation  was  not  necessarily  or  inherently  injurious,  because 
the  trial  court  found  that  at  the  time  of  the  trial  its  operation  did 
not  damage  the  plaintiffs.  Judge  Andrews  said  in  the  Kernochan 
case  :33  '  We  should  be  very  reluctant  to  make  a  decision  which 
would  expose  the  defendants  to  a  double  action  in  cases  like  this/ 
and  I  imagine  that  the  reluctance  still  continues.  Nevertheless,  if 
the  judgment  before  us  is  affirmed  the  defendant  will  be  subjected 
to  a  double  recovery  against  it,  for  under  the  Bly  case  the  tenant 
is  also  entitled  to  recover,  if  in  fact  he  has  not  already  recovered, 
the  diminution  in  the  rental  value  during  the  same  period  for 
which  the  plaintiffs  are  awarded  damages  for  such  diminution.  It 
is  not  a  case  like  that  suggested  where  the  same  act  has  caused 
injury  to  different  persons  and  each  recovers  for  the  injury  to 
himself,  but  here  two  parties  will  recover  for  exactly  the  same 
injury.  I  may  suggest  this  further  distinction  between  the  ele- 
vated railroad  cases  and  that  of  a  casual  temporary  nuisance.  In 
the  Kernochan  case  the  defendant,  upon  satisfactorily  compensating 
the  landlord,  could  continue  the  operation  of  its  road  despite  the 
complaint  of  his  tenant.  Here  no  release  from  or  settlement  with 
the  landlord  could  have  prevented  the  tenant  from  restraining  the 
operation  of  the  defendant's  plant.  Moreover,  the  care  by  the 
plaintiffs  was  for  a  term  of  years.  The  right  of  the  tenant  and 
landlord  then  became  fixed  and  the  damage  to  the  plaintiff  at  once. 
It  was  the  diminished  rent  during  the  demised  term.  Had  the 
defendant  ceased  the  operation  of  its  plant  the  day  after  the  lease 
the  plaintiffs'  injury  would  have  been  as  great  as  if  it  had  main- 
tained the  operation  during  the  whole  demised  term.  Yet  I  appre- 
hend no  one  will  contend  that  the  defendant  would  have  been  liable 
for  the  whole  period.  But  if  we  should  assume  that  such  a  conten- 
tion would  be  well  founded  the  result  would  be  that  the  day  after 

33.  128  N.  Y.  559. 

723 


§  493      Kemedies,  Parties,  Defenses  and  Damages. 

the  lease  the  operation  of  the  plant  might  be  stopped  at  the  suit  of 
the  tenant  and  yet  the  defendant  remain  liable  to  the  landlord  for 
the  loss  of  rent  for  the  whole  term  of  the  lease.  In  other  words,  the 
defendant's  liability  would  depend  not  on  the  injury  done  by  its 
tresspass  or  nuisance,  but  on  the  manner  in  which  the  owner  might 
deal  with  his  property.  The  decision  in  the  Bly  case  did  not  pass 
this  court  without  discussion.  On  the  contrary,  there  was  a  vigor- 
ous dissent  by  Judge  Haight  (concurred  in  by  two  other  members 
of  the  court),  who  contended  that  the  loss  in  rental  value  went  to 
the  landlord,  not  to  the  tenant.  The  force  of  this  position  was 
appreciated  by  the  majority  of  the  court  which,  when  it  decided 
that  the  court  could  recover  for  that  loss,  substantially  decided 
that  the  landlord  could  not.  I  think  the  judgment  should  be  re- 
versed and  a  new  trial  granted,  costs  to  abide  event."34 


34.  The  above  opinion  was  dis- 
sented from  by  Mr.  Justices  Bartlett, 
Haight  and  Gray,  Mr.  Justice  Gray 
writing  the  dissenting  opinion.  Mr. 
J  ustice  Gray  says :  "  In  my  opinion 
the  right  of  the  plaintiffs  to  bring 
and  maintain  this  action  is  clear 
and  the  defendant's  appeal  cannot  be 
sustained.  The  plaintiffs  were  shown 
to  have  been  injured  by  the  defend- 
ant's acts  in  the  depreciation  of  the 
value  of  the  property,  as  shown  by 
the  diminished  amount  of  the  rent 
for  the  premises  reserved  by  the 
lease  of  1895.  For  the  prior  term 
of  five  years  from  1890,  they  had 
been  receiving  $15,000  a  year  as 
rent,  while  for  the  succeeding  term 
of  five  years,  from  1895,  they  were 
to  receive  only  $12,000  a  year.  That 
represented  a  total  loss  to  the  owner 
of  $15,000  for  the  new  term  and  fur- 
nished a  basis  of  injury,  upon  which 
this  action  was  commenced  in  1898. 

"  I  consider  it  to  be  a  settled  rule  of 
law  that  where  the  wrongful  act  af- 
fects different  interests  in  the   same 


property  the  owner  of  each  interest 
may  have  his  separate  action  against 
the  wrongdoer.  Lessor  and  tenant 
have  separate  estates,  and  each,  if  in- 
jured therein,  may  have  redress — the 
one  for  the  injury  to  the  reversion, 
the  other  for  the  injury  inflicted  in 
diminishing  his  enjoyment  of  the 
premises.  This  rule  and  its  reasons 
have  been  heretofore  discussed  with 
such  care  that  I  deem  it  necessary 
only  to  refer  to  the  recent  cases  of 
Kernochan  v.  N.  Y.  Elevated  Rail- 
road, 128  N.  Y.  559;  Hine  v.  Same, 
lb.  571;  Kernochan  v.  Man.  Ry.,  161 
lb.  345,  and  Bly  v.  Edison  Electric 
111.  Co.,  172  lb.  1.  If  it  be  a  nuisance, 
which  is  the  subject  of  complaint  as 
injuring  adjacent  property  interests, 
the  question  is,  when  the  owner  not 
in  possession  sues,  whether  it  has  di- 
minished the  rental  value  of  his  prop- 
erty, the  difference  in  that  respect 
being  the  measure  of  his  right  to 
damages.  When  the  tenant  sues,  his 
right  to  recover  rests  upon  the 
ground    that    his    occupancy    is    dis- 


724: 


Bemedies,  Parties,  Defenses  asd  Damages. 


494 


§  494.   Damages   up    to   commencement   of  suit. — In  case  of 
nuisances,  or  repeated  trespasses,  damages  can  only  be  recovered 


turbed  and  the  full  enjoyment  of  his 
possession  of  the  premises  is  pre- 
vented by  the  common  nuisance. 
Francis  v.  Schoellkopf,  53  N.  Y.  152; 
Hine  v.  N.  Y.  Elevated  Railroad, 
supra;  Bly  v.  Edison  Electric  111. 
Co.,  supra.  In  the  Bly  case 
the  question  discussed  was  that 
of  the  tenant's  right  to  main- 
tain an  action  to  abate  a  nui- 
sance and  for  damages,  when  in 
under  a  lease  made  during  the  exist- 
ence of  the  nuisance.  It  was  held, 
upon  a  careful  review  of  the  authori- 
ties, in  effect,  that  as  there  was  no 
justification  for  the  maintenance  of 
that  which  was  a  nuisance,  and  hence 
an  unreasonable  and  a  wrongful  use 
by  the  defendant  of  its  property,  the 
tenant  of  the  property  injuriously  af- 
fected was  not  deprived  of  the  right 
to  bring  an  action  by  reason  of  hav- 
ing acquired  the  lease  thereof  during 
the  existence  of  the  nuisance  at  a  di- 
minished rental.  The  right  to  have 
compensation  for  injuries  actually 
sustained  and  to  have  the  nuisance 
abated  could  not  thereby  be  affected. 
It  was  upon  that  proposition  that  the 
judges  of  this  court  divided  in  opin- 
ion. As  to  the  right  of  the  owner  of 
property,  though  not  in  possession,  to 
maintain  an  action  to  restrain  the 
continuance  of  a  nuisance  which 
threatens  injury  to  his  reversionary 
rights  and  to  recover  for  any  damage 
which  he  may  be  able  to  show  that 
he  has  already  sustained  in  that  re- 
spect, I  think  there  should  be  no 
doubt.  It  is  argued  that  as  the  nui- 
sance arises  from  the  method  of  de- 
fendant's    operation     of     the    power 

72 


house,  presumptively,  it  is  but  casual 
and  temporary.  That  is  to  say, 
though  the  defendant's  building  and 
mechanical  plant  were  permanent 
structures,  the  operation  of  the  ma- 
chinery in  a  way  intolerable  and  in- 
jurious to  others,  as  complained  of, 
could  not  be  presumed  to  continue. 
Assuming  the  correctness  of  the 
proposition,  how  does  it  affect  the 
principle  upon  which  the  legal  right 
of  the  plaintiffs  was  founded?  They 
certainly  had  the  right  to  protect 
their  reversionary  interests  against 
injury.  A  casual  or  temporary  tres- 
pass or  nuisance,  if  the  latter  is  of  a 
casual  nature,  it  is  true,  usually  af- 
fects the  possession  of  the  property, 
and,  therefore,  gives  a  right  of  action 
to  the  lessee.  But  for  a  wrongful 
act,  which  diminishes  the  rental  value 
of  the  property,  and  which,  from  the 
circumstances,  may  fairly  be  regarded 
as  likely  to  continue,  whether  it  be 
in  the  nature  of  a  trespass  or  of  a 
nuisance,  an  action  will  lie  by  a  re- 
versioner to  redress  the  wrong,  al- 
though the  lessee  may  equally  have 
his  action  to  redress  the  wrong, 
although  the  lessee  may  equally  have 
his  action  to  redress  the  wrong  in- 
flicted upon  his  right  to  peaceable  and 
comfortable  possession.  See  Ker- 
nochan  Case,  128  N.  Y.  559,  566,  and 
"the  English  cases  cited  in  the  opin- 
ion, as  well  as  the  Bly  case,  supra. 
In  this  case  the  rental  value  of  the 
plaintiffs'  property,  when  the  second 
lease  was  made  in  1895,  was  dimin- 
ished to  the  extent  of  $3  000  a  year, 
under  conditions  of  lease  similar  to 
those  of  the  preceding,  and,  according 


§  494      Remedies,  Parties,  Defenses  and  Damages. 

up  to  the  commencement  of  the  suit,  because  every  continuance 


to  the  findings  of  the  trial  court,  the 
damage  to  the  plaintiffs  from  defend- 
ant's operations  only  ceased  to  be 
inflicted  in  1900.  Thus  the  defend- 
ant's use  of  its  power  house  in  a  way 
injurious  to  others  had  continued  for 
many  years  after  its  construction.  It 
had  so  seriously  affected  the  rental 
value  of  the  plaintiffs'  property  as  to 
compel  them  to  accept  a  reduced 
rental  in  1895  for  a  further  term,  and 
when  this  action  was  commenced  in 
1898,  the  threat  in  the  situation  was 
the  same.  However,  technically,  the 
nuisance  may  be  termed  casual,  as 
caused  by  the  methods  of  the  defend- 
ant in  operating  its  power  house,  it 
was  a  very  real  menace  to  the  plain- 
tiffs' interest  as  property  owners. 
The  case,  in  my  judgment,  came 
within  the  established  rule  which  al- 
lows an  action  to  a  lessor  whose  re- 
version is  injuriously  affected  to 
abate  the  nuisance  by  restraining  its 
continuance.  To  say  that  the  nui- 
sance was  a  casual  or  a  temporary 
one  is  an  answer  no  more  satisfac- 
tory than  it  is  complete  legally  to  the 
statement  of  the  owners  that  they 
had  suffered  injury  in  the  past  by  its 
maintenance  and  would  suffer  in  the 
future  unless  it  was  enjoined. 

"  It  is  further  agreed  that  as  the 
plaintiffs  failed  to  make  good  their 
ground  to  equitable  relief  by  proving 
that  the  nuisance  continued  to  exist 
at  the  time  of  the  trial  the  court 
should  not  have  retained  the  action, 
but  should  have  dismissed  the  com- 
plaint. It  is,  however,  well  settled 
that  when  a  court  of  equity  has 
gained  jurisdiction  of  a  case  its  ju- 
risdiction   is    not   affected   by    subse- 


quent changes  in  the  condition  of  the 
parties,  if  any  cause  of  action  sur- 
vive; it  may  retain  the  case  gener- 
ally to  do  complete  justice  between 
them  by  awarding  that  measure  of 
relief  for  the  injury  done  which  the 
case  admits.  The  jurisdiction  de- 
pended upon  the  situation  at  the 
commencement  of  the  suit  with  re- 
spect to  the  right  to  equitable  pro- 
cedure and  relief,  but  the  measure  of 
the  relief  would  be  regulated  by  the 
situation  at  the  time  of  pronouncing 
the  decree.  Lynch  v.  Metr.  Elevated 
Railroad,  129  N.  Y.  274;  Van  Rens- 
selaer v.  Van  Rensselaer,  113  lb.  207; 
Madison  Ave.  baptist  Church  v. 
Oliver  Street  Baptist  Church,  73  lb. 
82.  The  trial  court,  therefore,  com- 
mitted no  error  in  retaining  the  cause 
for  the  purpose  of  awarding  damages. 
A  further  question  is  pre- 
sented with  respect  to  the  damages. 
The  trial  court  awarded  the  sum  of 
$4,500  for  the  damages  sustained 
from  a  date  six  years  prior  to  the 
commencement  of  the  action  down  to 
the  date  of  the  trial.  When  the  ac- 
tion was  commenced,  in  1898,  the 
plaintiffs  had  submitted  to  a  definite 
loss,  upon  the  renewal  of  their  lease, 
in  1895,  for  a  term  of  five  years, 
amounting  to  $3,000  a  year,  or  to 
$15,000  for  the  whole  period.  Prior 
to  1895,  they  were  receiving  the 
rental  value  of  their  property  under 
the  lease  of  1890.  It  was  erroneous, 
therefore,  to  award  damages  for  the 
period  antedating  the  making  of  the 
new  lease  of  1895.  Then,  only,  a  loss 
was  first  sustained,  so  far  as  the 
record  shows,  which  was  recoverable, 
in  the  diminished  value  of  the  prop- 


726 


Remedies,  Parties,  Defenses  and  Damages.       §  494 

or  repetition  of  the  nuisance  gives  rise  to  a  new  cause  of  action, 
and  the  plaintiff  may  bring  successive  actions   as  long  as  the 


erty  due,  according  to  the  evidence,  to 
the  effects  of  the   defendant's  opera- 
tion  of   its   power   house   upon   these 
dwellings  and  their  occupants.       The 
amount    allowed    by    the    trial    court 
was  less  than  one-third  of  the  actual 
depreciation   in   rental   value   for  the 
term  of  five  years  from  1895  to  1900. 
The  Appellate   Division,   in   affirming 
the  judgment,  have  said  in  the  opin- 
ion in  respect  to  these  damages,  that 
they  regarded  the  case  as  one  where 
it  was  possible  to  '  separate  the  dam- 
age allowable  from  that  for  which  a 
recovery    could    not    be    had,'    and    I 
think   they  were   right.        While  the 
exercise  of  our  jurisdiction  to  grant 
to  a  party  such  judgment  as  he  may 
be  entitled   to    (Code,  §    1337),  is  to 
be  exercised  upon  the  facts  found  by 
the   court   below,    I   think   it   is   well 
exercised   in   this  case  in  the  affirm- 
ance of  the  judgment,   for   the  same 
reason  that  moved  the  Appellate  Di- 
vision Justices.     The  findings  of  fact 
plainly  state  that  nothing  was  award- 
ed to  the   plaintiffs   for   any  damage 
after    the    year    1900.        They    show, 
equally  clearly,  that  the  only  damage 
they   had   sustained    before   the   com- 
mencement of  the  action  was  in  the 
re-leasing   of    their    property,    in   the 
year     1895,     at     a     depreciation     of 
$15,000    for    the    whole    term    of   the 
lease.     They  also  show  that  the  mod- 
erate   award    was    due    to    the    trial 
judge's  conviction  that  the  deprecia- 
tion   in   the    rental   value,    generally, 
was    somewhat    influenced    by    other 
considerations.       Therefore,   his   find- 
ing as  to  the  period  wherein  damages 
were   recoverable  was  purely  formal, 


and,  clearly,  inadvertent  in  its  for- 
mulation, in  view  of  his  previous  find- 
ings of  fact.  There  should  be  no  dif- 
ficulty in  affirming  this  judgment 
when  the  recovery  was  so  far  within 
the  distinct  depreciation  of  the 
rental  value  as  shown  by  the  facts 
found." 

In  the  report  of  this  Miller  case  in 
62  Cent.  Law  J.  it  is  said    (p.  245)  : 
"  We    consider    the   reasoning   of   the 
dissenting  justices  clearly  the  sound- 
est"  and   we    fully   agree   with    this 
statement.     It  is  also  said   (p.  246)  : 
"  All  the  judges  concur  in  the  opinion 
that  the  action  was  not  triable  as  of 
right  by  a  jury.     The  majority  opin- 
ion loses  sight  of  a  principle  of  law 
that  is  recognized  in  measuring  dam- 
ages as  well  as  generally  that  all  rea- 
sonable  presumptions    will   be    taken 
in    favor    of    a    party    injured    and 
against    the     party    committing    the 
wrong,  therefore,   if  a  wrong  existed 
to  the  damage  and  annoyance  of  par- 
ties the  presumption  would  be  that  it 
would   continue   to   exist    unless   evi- 
dence  of   a   substantial   quality  were 
introduced  to  show  that  it  would  not. 
With    this    principle    in    view    there 
ought  to  have  been  little  trouble  in 
determining  that  the  minortiy  opin- 
ion is   right.     A   court  ought  not  to 
assume   that   an   absolute   injury    re- 
sulting,  as   in   this   case,    might   not 
continue.     It  is   in  existence;    it  has 
continued  since   the  complaint;      and 
the  law  ought,  in  face  of  such  circum- 
stances,   to    aid    the    remedy   against 
the  wrong  doer,  and  in  measuring  the 
damages   assume   that   it  would   con- 
tinue unless  the  contrary  were  made 


727 


§  494      Remedies,  Parties,,  Defeases  and  Damages. 

nuisance  lasts.35  And  it  is  held  in  a  New  York  case  that  in  an  ac- 
tion at  law  to  recover  damages  for  a  nuisance  damages  can  only  be 
recovered  up  to  the  commencement  of  the  action  and  therefore  per- 
manent or  fee  damages  for  the  continuance  of  a  nuisance  can  only 
be  recovered  in  an  action  in  equity.36  So  the  measure  of  damages 
resulting  from  the  operation  of  a  bakery  in  a  residential  neighbor- 
hood is  the  injury  suffered  by  plaintiff  down  to  the  commencement 
of  the  action,  and  depreciation  in  the  market  value  of  the  property 
will  not  be  considered,  there  being  no  evidence  whatever  of  perma- 
nent injury.37  And  in  case  of  a  nuisance  occasioned  by  the  main- 
tenance in  the  street  of  a  railroad  embankment,  interfering  with  an 
abutting  owner's  ingress  and  egress  to  and  from  his  property,  tue 


clearly  to  appear.  In  the  principle 
case  this  was  not  made  to  clearly  ap- 
pear. The  damages  were  estimated 
upon  a  proper  basis  that  is  to  say. 
upon  what  the  property  rented  for 
before  the  nuisance  began  and  the  de- 
preciation in  the  rental  value  caused 
by  its  continuance,  and  the  judgment 
of  the  lower  court  should  have  been 
sustained.  The  injury  to  the  tenant 
was  entirely  different.  What  right 
would  the  tenant  have  to  recover  for 
the  injury  to  the  rental  value  when 
his  occupancy  under  a  lease  was  the 
injury  he  suffered?  It  would  be  a 
strange  piece  of  reasoning  to  say  that 
since,  on  account  of  the  injury  in- 
flicted by  the  nuisance,  A.  is  com- 
pelled to  rent  his  property  for  less 
than  he  got  for  it  without  the  nui- 
sance, that  he  suffered  no  distinct  and 
separate  loss  from  that  of  the  ten- 
ant who  might  occupy  the  premises 
under  a  new  lease  at  a  less  amount 
of  rent.  The  law  is  made  not  only 
for  the  purpose  of  commanding  what 
is  right,  but  to  prevent  wrong.  To 
prevent  wrong  it  sets  salutary  ex- 
amples by  bringing  to  its  aid  every 
reasonble     intendment     against     the 


wrongdoer,  therefore,  its  presump- 
tions are  against  the  wrongdoer.  In 
a  case  like  that  under  consideration, 
it  should  compensate  the  tenant  for 
the  annoyance  caused,  and  the  owner 
for  the  injury  to  the  rental  value 
upon  the  grounds  set  forth  in  the 
minority  opinion. 

No  right  of  trial  by  jury  in 
equitable  action  and  verdict  is 
merely  advisory.  Issue  of  damages. 
McCarthy  v.  Gaston  Ridge  Mill  & 
Mining  Co.,  144  Cal.  542,  78  Pac.  7. 

35.  Joseph  Schlitz  Brewing  Co.  v. 
Compton,  142  111.  511,  34  Am.  St. 
Rep.  92,  18  L.  R.  A.  390,  32  N.  E. 
693.  See  Cumberland  &  O.  C.  Corp- 
v.  Hitchings,  65  Me.  140;  Dorman  v. 
Ames,  12  Minn.  451,  Gil.  347;  Pinney 
v.  Berry,  61  Mo.  359;  Morris  Canal 
&  Bkg.  Co.  v.  Ryerson,  27  N.  J.  L. 
457;  Thayer  v.  Brooks,  17  Ohio  489, 
49  Am.  Dec.  474 ;  Alexander  v.  Stew- 
art Bread  Co.,  21  Pa.  Super.  Ct.  526; 
Stadler  v.  Gueben,  61  Wis.  500,  21  N. 
W.  629. 

36.  Van  Veghten  v.  Hudson  River 
Power  Co.,  92  N.  Y.  Supp.  956,  958. 

37.  Alexander  v.  Stewart  Bread 
Co.,  21  Pa.  Super.  Ct.  526. 


Remedies,  Parties,  Defenses  and  Damages.       §  495 

damages  recoverable  are  within  the  general  rule  applicable  to  nuis- 
ances to  land  and  are  to  be  admeasured  by  the  amount  of  injury 
actually  sustained  at  the  commencement  of  the  action,  and  it  is 
not  the  deterioration  in  the  market  value  of  the  land  by  reason  of 
the  nuisance,  although  the  code  admeasures  the  damages  by  such 
rule  in  suits  for  the  condemnation  of  lands.38  But  damages  for 
a  continuing  nuisance  may  be  shown,  subsequent  to  the  filing  of 
the  original  petitition,  where  there  is  an  amendment  filed  claiming 
damages  to  the  time  of  trial.39  It  is  also  held  that  where  a  sewage 
disposal  plant  is  found  to  be  a  nuisance  it  is  competent  in  an  action 
in  equity  to  receive  evidence  of  damages  which  have  accrued  down 
to  the  time  of  trial.40  And  where  it  is  both  pleaded  and  proven 
by  defendant  that  it  intends  to  remove  the  alleged  nuisance  within 
a  short  time  and  thus  effectually  abate  the  claimed  wrongs  and 
injuries,  the  plaintiff  can  only  recover  compensation  for  the  dam- 
age to  the  commencement  of  the  action  unless  the  injury  is  perma- 
nent and  enduring  as  such  pleading  and  proof  operates  to  limit 
the  damages  to  the  above  extent.41  So  permanent  diminution  in 
the  value  of  lots  can  not  be  recovered,  but  only  such  damages  as 
have  been  sustained  prior  to  the  commencement  of  the  action  where 
plaintiff's  rights  in  a  street  have  been  interfered  with  by  a  railroad 
corporation.42 

§  495.  Recovery  of  entire  damages  in  one  action. — Where 
damages  are  of  a  permanent  nature  and  affect  the  value  of  the 
estate  a  recovery  may  be  had  of  the  entire  damages  in  one  action ; 
but  where  the  extent  of  the  wrong  can  be  apportioned  from  time 
to  time  separate  actions  should  be  brought  to  recover  the  damages 

38.  Coats  v.  Atchison  (Cal.  Ct.  603,  23  N.  E.  169,  28  N.  Y.  St.  R. 
App.  1905),  82  Pac.  640.  Action   here  was  to  recover  damages 

39.  Bowman  v.  Humphrey,  124  occasioned  by  building  an  embank- 
Iowa  744,  100  N.  W.  854.  ment  on  adjoining  street.     See  Jack- 

40.  Gerow  v.  Village  of  Liberty,  son  v.  Chicago,  S.  F.  &  C.  R.  Co..  41 
106  N.  Y.  App.  Div.  357.  Fed.  656    (Railroad  in  street  and  ac- 

41.  Hughes  v.  General  Electric  tion  for  damages)  ;  Nashville  v. 
Light  &  Power  Co.,  107  Ky.  485,  54  Comar,  88  Tenn.  (4  Pick.)  415.  (Neg- 
S.  W.  723.  ligent  construction  of  sewer  and  ac- 

42.  Ottenot   v.  New  York,  Lacka-  tion  for  damages.) 
wanna  &  Western  Ry.  Co.,  119  N.  Y. 

729 


§  496      Remedies,  Parties,  Defenses  and  Damages. 

sustained.43  So  where  a  permanent'  injury  is  occasioned  by  a 
permanent  lawful,  public  structure,  damages  past,  present  and 
future,  may  be  recovered  in  one  suit.44  And  where  the  damage  to 
plaintiff's  land  is  permanent  and  irremediable  he  can  recover  in 
one  action  all  present  and  prospective  damages,  but  if  the  injury 
is  temporary  in  character  and  capable  of  being  avoided  without 
permanently  injuring  plaintiff's  land,  damages  can  be  recovered 
only  up  to  the  commencement  of  the  action,  as  in  such  case 
the  nuisance  would  be  a  continuing  one.45  Again,  where  a  rail- 
way is  constructed  without  leaving  sufficient  space  between  the 
embankments,  or  it  fails  otherwise  to  provide  against  freshets 
reasonably  to  be  expected,  an  injury  due  to  that  cause  may  be 
compensated  for  by  the  assessment  of  present  and  prospective 
damages  in  a  single  action.  The  measure  of  damages  is  the  dif- 
ference in  the  value  of  the  plaintiff's  land  with  the  road  so  im- 
properly constructed,  and  what  would  have  been  its  value  had 
the  road  been  skilfully  constructed.46 

§  496.  Same  subject — Other  statements  of  rule — Instances. 
— Under  an  Arkansas  decision  where  a  nuisance  is  of  a  permanent 
nature  and  its  erection  and  continuance  are  necessarily  an  injury, 
the  damage  it  causes  may  be  fully  compensated  at  once  and  the 
statute  of  limitations  runs  against  an  action  therefor  from  the 
time  the  nuisance  is  created.47  In  Indiana  where  a  nuisance  is 
of  a  character  so  permanent  that  it  may  fairly  be  said  that  the 
entire  damages  accrues  in  the  first  instance  the  statute  of  limita- 
tions begins  to  run  at  this  time.  On  the  other  hand,  where  the 
nuisance  is  a  continuing  source  of  injury  there  is  a  continuing 

43.  Smith  v.  Point  Pleasant  &  R.  Co.  v.  Combs,  10  Bush  (Ky.)  382. 
Ohio  R.  R.  Co.,  23  W.  Va.  451.  Ex-  19  Am.  Rep.  67;  Town  of  Troy  v. 
amine    Hargreaves    v.    Kimberly,    26       Cheshire  R.  Co.,  23  N.  H.  83. 

W.  Va.  787,  57  Am.  Rep.  121.  45.  Beatrice    Gas    Co.   v.    Thomas, 

44.  Joseph  Schlitz  Brewing  Co.  v.  41  Neb.  662,  43  Am.  St  Rep.  711,  59 
Compton,    142   111.    511,    34   Am.    St.       N.  W.  925. 

Rep.   92,   18  L.  R.   A.   390,  32   N.   E.  46.  Ridley  v.  Seaboard  &  Roanoke 

693.     See  Chicago  Forge  &  Bolt   Co.  R.   Co.,    118  N.   C.   996,  32   L.   R.   A. 

v.  Sanche,  35  111.  App.  174;  Bizer  v.  708,  24  S.  E.  730. 
Ottumwa    Hydraulic    Power    Co.,  70  47.  St.    Louis,    Iron    Mountain    & 

Iowa,  145;   Elizabethtown  L.  &  B.  S.  S.  K.  Co.  v.  Biggs,  52  Ark.  240. 

.730 


Kemedies,  Parties,  Defenses  and  Damages.       §  497 

right  of  action.48     In  Texas  where  a  nuisance  is  permanent  and 
continuing,  the  damages  resulting  from  it  should  all  be  estimated 
in  one  suit;  but  where  it  is  not  permanent,  but  depends  upon 
accidents  and  contingencies,  so  that  it  is  of  a  transient  character, 
successive  actions  may  be  brought  for  the  injury  as  it  occurs,  and 
an  action  for  such  injury  would  not  be  barred  by  the  statute  of 
limitations  unless  the  full  period  of  the  statute  had  run  against 
the  special  injury  before  suit.49     Again,  all  damages  of  a  per- 
manent character  occasioned  by  the  running  of  street  cars  may  be 
recovered  in  one  suit  at  law,  and  the  injury  is  not  such  a  contin- 
uing one  as  to  warrant  relief  by  injunction.     Where  the  damages 
are  of  a  permanent  character  and  affect  the  value  of  an  estate,  a 
recovery  may  be  had  in  one  suit  at  law  of  the  entire  damages  in 
one  action.50     And  where  a  railroad  company  has  built  an  imper- 
fect and  faulty  bridge  over  a  stream  of  water  crossing  its  right 
of  way,  a  party  suffering  damage  therefrom  has  the  right  to  re- 
gard the  nuisance   as  of  a   transient  character,   and,   instead  of 
bringing  one  action  for  the  whole  injury  to  the  value  of  his  prop- 
erty resulting  from  the  original  construction  of  the  nuisance  he 
may  sue  for  the  amount  of  such  injury  as  he  suffers  from  its 
continuance.       But   if   the    injured    party    treats   the     defective 
structure  as  a  permanent  source  of  injury,  and  recovers  the  full 
amount  of  damages,  both  present  and  prospective,  which  his  prop- 
erty sustains  or  may  sustain  by  reason  of  such  defective  structure, 
he  will  be  estopped  from  bringing  a  second  action  for  damages.01 

§  497.  Direct  and  consequential  injury. 51a — Though  a  nui- 
sance be  a  public  one,  yet  if  special  damage  accrues  to  a 
particular  person,  either  direct  or  consequential,  he  can  re- 
cover, and  upon  proof  of  the  nuisance  the  law  infers  damages. 
Sickness  is   an   element  of  damage   and   discomfort   and   incon- 

48.  Peck  v.  City  of  Michigan  City,  amine  Neville  v.  Mitchell  (Tex.  Civ. 
149  Ind.  670,  49  N.  E.  800.  App.),  66  S.  W.  579. 

49.  Austin  &  Northwestern  Ry.  Co.  50.  Smith  v.  Point  Pleasant  & 
v.  Anderson,  79  Tex.  427,  433,  citing  Ohio  Paver  R.  R.  Co.,  23  W.  Va.  451. 
Wood  on  Limitation.  §  371.  See  51.  Chicago,  Burlington  &  Quin- 
Umscheid  v.  City  of  San  Antonio,  cey  R.  Co.  v.  Schaffer,  124  111.  112. 
(Tex.  Civ.  App.)    69  S.  W.  496.     Ex-  120,  16  N.  E.  239,  14  West.  Rep.  139. 

51a.  See  §§  39,  note  117,  herein. 

731 


§  498      Remedies,  Parties,  Defenses  and  Damages. 

venience,  also  the  loss  of  services  of  children  or  of  a  wife,  and 
medical  expenses.52  Again,  a  plaintiff  is  entitled  to  recover  dam- 
ages not  only  for  direct  but  consequential  injuries  for  injury 
occasioned  to  property  adjacent  to  the  mouth  of  a  tunnel,  caused 
by  the  smoke,  cinders,  gases  and  vibrations  resulting  from  the 
operation  of  a  railroad,  where  the  company  has  not  complied  with 
a  city  ordinance  providing  certain  safeguards  to  prevent  such 
injury.  The  rule  applies  although  there  has  been  no  taking  of 
plaintiff's  land  and  the  road  was  operated  under  the  company's 
charter  and  negligence  is  not  shown.  This  is  so  decided  in  a  case 
where  a  railroad  was  constructed  through  a  city  under  an  or- 
dinance which  provided  that  it  should  be  built  in  a  tunnel  at 
certain  places  and  that  between  two  designated  points  the  com- 
pany should  establish  a  station,  the  train  shed  of  which  should 
cover  all  of  the  tracks  and  be  provided  with  smoke  escapes  twenty- 
five  feet  above  the  level  of  the  street.  No  station  or  shed  was 
erected  at  this  point,  but  the  road  there  ran  through  an  open 
cut  between  the  two  tunnels*.  Plaintiff's  property  adjoined  this 
open  cut,  and  in  the  operation  of  the  road  smoke  and  gases  were 
drawn  out  of  the  tunnels  and  cast  upon  plaintiff's  land,  and  he 
was  also  subjected  to  an  unusual  degree  of  vibration.53 

§  498.  Nominal  damages. — In  a  trial  to  recover  damages  for 
a  continuing  nuisance  if  the  jury  find  that  the  plaintiff  has  suf- 
fered no  special  damage,  and  yet  find  that  a  nuisance  exists,  a 
verdict  for  nominal  damages  is  proper.54  So  nominal  damages 
only  will  be  awarded  where  there  is  no  evidence  as  to  the  extent 
of  the  damage  or  that  serious  results  followed  the  creation  of  the 


52.  Adams    Hotel    Co.    v.    Cobb,    3  53.  Baltimore  Belt  R.  Co.  &  B.  & 

Ind.      Ty.      50,      53      S.      W.       478  0.  R.  Co.  v.  Sattler,  100  Md.  306. 

(Private   Service).     See   Colstrum  v.  54.  Farley  v.  Gate  City  Gas  Light 

Minneapolis  St.  R.  Co.,  33  Minn.  516..  Co.,  105  Ga.  323,  31  S.  E.  193. 

24  N.  W.  255;   Pottstown  Gas  Co.  v.  55.  Perry     v.     Howe     Co-operative 

Murphy,  39  Pa.  257.     Compare  Ken-  Creamery  Co.,  125  Iowa,  415,   101  N. 

sigton,  Com'rs  &  Wood,  10  Pa.  93,  49  W.   150;  action  in  equity  for  injunc- 

Am.  Dec.  582.  tion  and  for  damages. 


732 


Remedies,  Parties,  Defenses  and  Damages.        §§  499-501 

§  499.  Negligence — Actual  damages. — Where  the  foundation 
of  a  suit  is  the  active  creation  of  a  private  nuisance,  and  not  merely 
a  wrong  arising  from  negligence,  the  degree  of  care  used  by  de- 
fendant in  the  construction  of  waterways  is  immaterial  in  deter- 
mining plaintiff's  right  to  recover  actual  damages  from  it.5 

§  500.  Duty  to  lessen  damages. — Where  the  suit  is  for  a  per- 
manent injury  to  land  it  is1  proper  to  consider  whether  the  injury 
could  be  obviated  in  whole  or  in  part  by  a  reasonable  expenditure 
in  removing  the  obstruction  and  no  distinction  exists  as  to  a  case 
where  it  is  sought  to  recover  damages  to  crops,  or  use  and  occu- 
pation resulting  from  a  continuing  nuisance  so  that  in  trespass  on 
the  case  to  lands  by  flooding  owing  to  the  alleged  improper  con- 
struction and  maintenance  of  defendant's  railroad  upon  and  ad- 
jacent to  plaintiff's  lands  if  the  plaintiff  could,  by  the  exercise 
of  reasonable  diligence,  by  work  on  his  own  land,  have  lesssened 
the  damages  or  obviated  them  in  whole  or  in  part  it  was  his  duty 
to  have  done  so.  In  such  case  the  measure  of  damages  would  be 
the  loss  sustained  before  he  could  in  the  exercise  of  reasonable 
diligence  have  abated  the  nuisance,  together  with  all  cost  and 
expense  of  abating  it.57 

§  501.  Actual  damages — Additional  damages. — A  person  may 
not  only  be  entitled  to  recover  such  damages  as  will  compensate 
him  for  injury  to  his  property,  but  also  be  entitled  to  recover  for 
the  discomforts  suffered  by  him  and  his  family  in  addition 
to  the  actual  damage  done  to  his  property,  or  be  entitled  to  re- 
cover for  such  discomforts  even  though  his  property  has  sustained 
no  actual  damage,  as  in  a  case  where  sawdust  blown  from  de- 
fendant's mill  injures  plaintiff's  property,  etc.58     And  where  a 

56.  Alabama   Consolidated  Coal   &  57.  Atchison,   Topeka   &   Santa  Fe 

Iron  Co.  v.  Turner    (Ala.   1905),   39  Ry.  Co.  v.  Jones,   110  111.  App.  626. 

So.  603.  See  Joyce  on  Damages  as  to  duty  to 

Distinction       between       negli-  lessen  damages  generally,  §§  194,  195, 

gence    and    nuisances.     See    §    18,  1005,  1068,  1288,  1424,  2224,  2236. 

herein.  58.  Mahan  v.   Doggett,  27   Ky.  L. 

As   to   negligence  or   contribn-  Rep.  103,  84  S.  W.  525. 
tory     negligence.       See     §§     45-47 
herein. 

733 


§  501      Remedies,  Parties,  Defenses  and  Damages. 

nuisance  affects  real  estate,  damages  at  law  for  the  mainten- 
ance of  such  nuisance  are  not  admeasured  merely  by  the  depreci- 
ation of  the  property,  but  also  by  the  personal  discomfort  occa- 
sioned thereby  and  any  cause  producing  a  constant  apprehension 
of  danger.59  Again,  where  ties  were  placed  upon  the  highway 
in  front  of  plaintiff's  residence,  causing  water  to  collect  and 
become  foul  and  stagnant  and  to  decompose  the  timber,  causing 
offensive  odors  and  sickness,  the  items  of  damage  resulting  there- 
from and  recoverable  are  loss  of  time,  all  the  discomforts  in 
the  house  caused  thereby,  such  as  vile  odors,  whether  mental  or 
bodily  pain  or  both  were  occasioned ;  but  no  recovery  can  be 
had  for  the  unsightly  appearance  presented  by  the  ties  nor  the 
marring  of  the  view  in  front  of  the  house.  If  recovery  is  sought. 
for  mental  pain,  there  should  be  some  proof  that  such  pain  ex- 
isted, and  where  the  verdict  does  not  show  how  much  time  was 
lost  no  recovery  can  be  had  therefor.60  Xo  recovery  of  damages 
can  be  had  for  the  removal  by  defendants  against  plaintiff's  will 
of  an  embankment  or  fill,  across  and  in  a  canal,  unless  the  re- 
moval produces  a  nuisance,  but  if  it  does  produce  a  nuisance  and 
the  jury  so  find,  it  is  their  duty  to  find  damages  in  such  sum  as 
will  fully  compensate  the  plaintiffs  for  all  loss  sustained  in  con- 
sequence of  removing  such  embankment,  not  exceeding  the  sum 
claimed  in  the  complaint.61  And  the  measure  of  damages  oc- 
casioned by  a  cesspool  on  defendant's  lot,  owing  to  a  sewer  being 
so  improperly  constructed  or  out  of  repair  that  a  tenant  in  its  ordin- 
ary use  caused  the  damage  to  plaintiff,  is  what  it  would  cost  to 
remove  such  nuisance  or  restore  the  property  to  its  former  con- 
dition, including  the  loss  of  the  enjoyment  of  the  premises  ad  in- 
terim™ But  in  an  action  to  abate  a  nuisance  and  for  damages, 
caused  by  digging  a  ditch  upon  the  land  of  plaintiff,  the  cost  of 
filling  up  the  ditch  and  restoring  the  land  to  its  original  condition 
is  not  the  proper  measure  of  damages,  as  the  plaintiff  could  only 

59.  Baltimore  &  Potomac  R.  Co.  v.  61.  Learned      v.       Castle       (Cal.. 
Fifth  Baptist  Church,  108  U.  S.  5l7,       1884),   4  Pac.   191. 

2  Sup.  Ct.  719,  27  L.  Ed.  739.  62.  Ward  v.  Gardner,    1    Pa.   Cas. 

60.  Houston  East  &  West  Tex.  Ry.       339,  4  Pac.  191. 
Co.  v.  Reasonover,  36  Tex.  Civ.  App. 

274,  81  S.  W.  329. 

~o  1 


Remedies,,  Parties,  Defenses  and  Damages.    §§  502-50-t 

recover  for  the  injury  sustained  and  it  is  improper  to  award  com- 
pensation for  an  expense  that  might  never  be  incurred,  and  it  is 
possible  that  such  cost  of  filling  might  far  exceed  any  injury  re- 
sulting from  existing,  conditions,  and  the  amount  so  recovered 
might  never  be  used  for  such  purpose,  although  there  are  cases 
in  which  prospective  damages  may  be  recovered.63 

§  502.  Life  tenant — Rental  value — Additional  damages. — 
A  life  tenant  who  suffers  inconvenience  and  discomfort  in  the  oc- 
cupancy of  his  house  by  reason  of  coke  ovens  wrongfully  erected 
in  a  street  in  front  of  his  premises  is  entitled  to  recover  the  entire 
rental  value  of  the  property  during  the  time  the  ovens  are  main- 
tained, if  the  premises  during  such  time  have  been  untenant- 
able; and  in  addition  he  would  be  entitled  to  add  any  specific 
items  of  injury  done  by  the  smoke  from  such  ovens  to  his  fur- 
niture or  to  the  house  itself.64 

§  503.  Punitive  damages.. — Punitive  damages  may  be  awarded 
against  a  railroad  company  for  refusing  after  request  to  remove 
from  a  ditch  near  plaintiff's  premises  the  carcasses  of  animals 
which  it  had  killed  and  knocked  therein,  and  the  odor  from  which 
rendered  life  in  her  dwelling  house  almost  unbearable.63 

§  504.  Damages — Pleading — General  decisions.  —  Where  the 
declaration  alleged  that  the  market  value  of  a  lot  belonging  to  the 
plaintiff  had  been  depreciated  in  the  sum  of  three  thousand  five 

63.  De  Costa  v.  The  Massachusetts,  upon  the  rights  of  an  individual  is  of 
Flat  Water  &  Mining  Co.,  17  Cal.  itself  sufficient  to  permit  the  award- 
613.  ing     of     punitive     damages,     though 

64.  Herbert  v.  Rainey,  162  Pa.  committed  upon  but  one  single  occa- 
St.  525,  34  W.  N.  C.  494,  29  Atl.  725.  sion.    What,  then,  must  be  said  of  a 

65.  Yazoo  &  M.  V.  R.  Co.  v.  Sand-  case  where  for  each  minute  of  the 
ers  (Miss.,  1906),  40  So.  163.  The  time,  by  day  and  by  night,  from  day 
court,  per  Truly,  J.,  said:  "A  more  to  day,  there  was  a  continued  viola- 
flagrant,  unwarrantable  and  op-  tion  of  the  rights  of  the  appellee  by 
pressive  violation  of  the  trampling  the  commission  of  an  act  which  ren- 
upon  the  rights  of  the  public  was  dered  the  enjoyment,  and  practically 
never  presented  to  an  appellate  the  habitation  of  her  home  impossi- 
court.    To  wilfully  commit  a  trespass  ble."     See  Joyce  on  Damages,  §  2153. 

V35 


§  505      Remedies,  Parties,  Defeases  axd  Damages. 

hundred  dollars,  by  reason  of  a  nuisance  created  and  maintained 
by  the  defendant,  such  an  allegation  is  subject  to  special  demurrer 
on  the  ground  that  it  fails  to  state  what  was  the  value  of  the  lot. 
before  the  injury,  which  was  that  of  an  alleged  damage  consequent 
upon  the  discharge  of  impure,  filthy  water  on  premises  below  de- 
fendants.66 So  the  answer  in  a  suit  for  pollution  of  waters  by 
sewage  should,  where  the  averments  of  complainants  state  their 
damages  as  "  calculated  upon  the  basis  of  said  injuries  being 
permanent,"  declare  by  way  of  counter  statement  whether  it  is 
intended  to  pollute  the  waters  of  the  river  for  an  indefinite  time, 
or  whether  it  intends  to  stop  polluting  them  within  a  definite 
period,  and  if  the  latter  is  intended,  the  period  should  be  desig- 
nated in  order  to  enable  complainants'  damages  to  be  definitely 
ascertained  if  computed  on  that  basis,  since  only  be  naming  a 
definite  period  is  it  possible  to  compute  damages  on  any  other 
theory  than  a  permanent  one.67  Again,  where  a  person  seeks  an  in- 
junction to  restrain  a  nuisance,  a  temporary  injunction  may  issue 
even  though  he  does  not  allege  that  he  has  suffered  damage  in  any 
specific  sum,  or  demand  damages  in  any  specific  sum,  where  there 
is  a  sufficient  allegation  of  substantial  injuries  as  well  as  a  show- 
ing that  a  continuance  of  the  nuisance  will  work  serious  and  ir- 
reparable injury  to  his  business.68 

§  505.  Waiver  of  irregularities  in  taking  land  by  accepting 
damages. — If  a  land  owner  chooses  to  waive  irregularities  in  the 
taking  of  land,  for  a  hospital  for  contagious  diseases,  under  a 
statute,  and  accepts  payment  of  the  damages,  it  is  a  good  taking 
as  to  him.  Such  statutes  are  for  the  protection  of  the  public  health, 
are  wholesome  and  reasonable  and  violate  no  constitutional  pro- 
vision, and  such  hospital  being  under  the  supervision  of  the  board 
of  health  is  not  to  be  assumed  in  advance  to  be  either  a  public 
or  a  private  nuisance.69 

66.  City  Council  of  Augusta  v.  68.  Nisbet  v.  Great  Northern  Clay 
Marks   (Ga.,  1905),  52  S.  E.  539.  Co.   (Wash.,  1905),  83  Pac.  14. 

67.  Doremus  v.  Mayor,  etc.,  of  Pat-  69.  Manning  v.  Bruce,  186  Mass. 
erson   (N.  J.  E.,  1905),.  62  Atl.  3.  282. 


736 


INDEX 

(The  references  are  to  sections.) 


ABATEMENT,  24. 

power  of  equity  as  to,  3,  note. 

power  of  city  to  abate,  3,  note;  4,  note. 

See  Municipality. 
jurisdiction  as  to,  4,  note;  9,  note, 
right  as  to,  by  mandatory  injunction,  4,  note, 
notice  or  request  to  abate,  455-458. 
right  of  public  authorities  to  abate  public  nuisance  is   not  affected  by 

length  of  time  maintained,  50. 
of  purprestures,  66. 

of  nuisance  which  pollutes  water  supply,  304. 
police  power  of  State,  pollution  of  city  water  supply,  304. 
of  mill-pond  as  nuisance,  305. 
of  nuisance  by  constructing  drain,  307. 
of  nuisance,  filling  up  drain  in  highway,  307. 
when  board  of  health  may  abate  nuisance,  307. 
of  nuisance,  borough  officials  indictable,  414. 
of  nuisance,  equity  will  use  caution  in,  415. 
nuisance  by  city,  unsafe  building,  415,  note, 
of  that  which  is  not  a  nuisance,  perils  and  liabilities,  416. 
enforcing  judgment  of,  416,  note. 

order  or  judgment  for  when  proper,  when  not,  416,  note, 
action  for,  "  public  "  denned,  438,  note, 
action  by  city — obstruction  of  streets,  439,  note, 
demand  or  request  to  abate  nuisance,  455-458. 
demand  for  when  not  necessary,  456,  note, 
voluntary,  486. 
jurisdiction  retained  to  award  damages,  4S7. 

See  Summaky  Abatement. 

ABATTOIR: 

See  Slaughtee  House, 
ABUSIVE  LANGUAGE : 

use  of  on  highway,  258. 
ABUTMENTS: 

for  railroads  in  highways,  250. 

(737) 


Index. 

(The  references  are  to  sections.) 
ABUTTING   OWNER: 

municipality  cannot  interfere  with  right  of  access  of,  80. 
on  street  or  alley,  private  person,  public  nuisance,  424. 
loss  of  easement  of  view,  424. 
ingress  and  egress  obstructed  to  street,  private  action,  436. 

joinder  in  suit,  443. 

See  Buildings,  Highways,  View. 
ACCESS: 

municipality  cannot  unlawfully  interfere  with  right  of,  80. 

injury  to,  by  flooding  highway,  220. 

nuisance  on  highway  affecting,  222. 

obstruction  need  not  be  continuous  and  uninterrupted  to  give  remedy  to 
individual,  222. 

need  not  be  entirely  cut  off  to  give  remedy  to  individual,  222. 

for  injury  to,  abutter  has  remedy  though  municipality  owns  fee,  222. 

to  premises  impeded  by  market,  228,  note. 

of  abutting  owner  injured  by  building  encroaching  on  highway,  234. 
ACID: 

discharged  into  stream,  303. 
ACQUIESCENCE : 

delay  as  evidence  in  case  of  prescriptive  right,  58. 

knowledge  or  failure  to  complain,  485. 

See  Laches. 
ACT: 

See  Congress,  Statute. 
ACTION: 

public  or  private,  4,  note. 

gist  of,  is  damage,  17. 

right  of,  exists  for  slight  as  well  as  great  injury,  19. 

when  lies  for  nuisance  to  house  or  land,  19. 

lies  when  legal  right  clearly  invaded,  22. 

acts  of  several  persons  may  constitute  nuisance,  23. 

on  case  by  erection  of  nuisance  near  habitation,  34. 

Jies  where  legal  right  invaded,  39. 

where  special  damage  to  private  person,  39. 

at  law  for  damages  where  property  depreciated  in  value,  40. 

motive  or  intent  in  filing  bill,  43. 

successive  one,  sewer  left  in  unfinished  state,  281. 

suit  by  attorney-general  to  restrain  abuse  of  power  by  public  body,  288. 

cause  of,  defined,  3G4. 

who  has  right  of;  explosives,  385. 

for  damages,  liquor  nuisance,  399. 

civil  or  criminal,  liquor  nuisance,  399-401. 

for  damages,  when  does  not  lie  where  tree  branches  overhang  land,  411. 

by  private  person,  title  unnecessary,  422,  note. 

(738) 


Index. 

(The  references  are  to  sections.) 
ACTION— Continued. 

by  private  person,  public  nuisance,  422-436. 

legislature  may  designate  who  may  sue,  426. 

by  English  local  authority,  special  damage  necessary,  439. 

by  trustees  for  disturbing  religious  worship,  442. 

on  case  by  party  in  possession  without  title,  444,  note. 

notice  of,  condition  precedent,  455,  note. 

discontinuance  of  nuisance  pendente  lite,  493. 

damages  up  to  commencement  of  suit,  494. 

recovery  of  entire  damages  in  one  suit,  495,  496. 

See  Case,  Equity,  Parties,  Remedies. 
ACTUAL  DAMAGES: 

negligence,  498,  501. 
ADVERTISEMENTS : 

municipality  may  prevent  distribution  of,  263. 

needlessly  alarming  public,  indictment,  414. 
AGENT: 

acts  of,  liability  for,  43. 

one  acting  as,  not  liable  for  nuisance  caused  by  fence   encroaching  on 
highway,  239. 

negligence,  liability  of  municipal  and  quasi  municipal  bodies,  279. 

to  make  sanitary  inspections,  may  sue,  440. 

rent  collector,  not  for  service  of  notice,  455   note 
AGRICULTURAL  LANDS: 

damages,  329. 
AIR: 

polluted,  may  constitute  nuisance,  2,  note. 

right  exists  to  have  fresh  and  pure  air,  5,  note. 

easement  of,  36,  37. 

abutting  street  owners'  easement,  36. 

English  Prescription  Act,  36. 

right  to  pure  and  fresh  air,  38. 

right  of  individual  to  pure  air,  136. 

elementary  law  that  corruption  of,  a  nuisance,  157,  note. 

distinction  between   nuisances  affecting  air  and  those  affecting  land  or 
structures,  189. 

obstruction  of,  by  building  encroaching  on  highway,  234. 

obstruction  of,  by  structure  on  or  above  highway,  236. 

polluted  by  sewage,  286. 

polluted  by  gases  from  oil  percolations,  387. 

and  light,  fences  and  structures,  403. 

See  Light  and  Aib. 
ALCOHOL: 

amount  of,  as  factor,  liquor  nuisance,  400,  note 
ALDERMEN: 

See  Boaed  of. 

(739) 


IjVDEX. 

(The  references  are  to  sections.) 

ALIENEE: 

when  responsible  for  continuance  of  nuisance,  456,  note. 

ALLEY: 

abutting  owner  on,  private  person,  public  nuisance,  424. 
right  to  use,  2,  note, 
obstructed,  private  action,  436. 
ANCIENT  LIGHTS,  36. 
ANIMAL  CARCASS: 

common  nuisance,  6,  note;  9,  note. 
ANIMAL  ENCLOSURES: 

livery  stable  not  a  nuisance  per  se,  200. 

livery  stable   may  become  a  nuisance   from  manner   of  construction   or 

conducting,  201. 
that  stable  properly  built  or  kept  no  defense,  202. 
that  location  of  stable  is  desirable  or  convenient  no  defense,  203. 
where  nuisance  from  private  stable  consists  in  manner  it  is  kept,  204. 
manure  deposited  from  barn  a  nuisance,  204. 

where  occupancy  of  house  affected  by  odors  from  private  stable,  204. 
noisome  smells  from  private  stable  on  adjoining  premises,  204 
private  stable  or  barn,  204. 

statute  prohibiting  erection  of  stable  near  church  construed,  205. 
proceeding  to  enjoin  erection  of  stable,  205. 
proceeding  to  enjoin  proposed  use  of  building  as  a  stable,  206. 
evidence  on  question  of  stables  as  a  nuisance,  207. 
cattle  pens,  yards  and  piggeries,  208. 
stock  yards  and  cattle  cars,  209. 
construction  or  maintenance  of  stables  or  cattle  enclosures  as  affected  bj 

ordinance,  210. 
damages  recoverable,  211. 

measure  of  damages  for  nuisance  caused  by  livery  stable,  211. 
measure  of  damages  for  nuisance  caused  by  stock  yards,  211. 
See  Cattle  Pens,  Cattle  Yards,  Livery  Stables,  Piggeries,  Stables. 
ANIMALS: 

erection  of  building  for  boiling  carcasses  of,  not  enjoined,  103. 

liability  of  owner  of  vicious  dog  for  injury,  192. 

injury  by  vicious  cow,  192. 

duty  as  to  care  where  vicious,  applies  to  bailee  of,  192,  note. 

facts  putting  owner  of  on  inquiry  as  to  viciousness,  192,  note. 

where  dog  on  premises  of  owner  injures  another,  192. 

ferocious  dog  may  be  destroyed  by  any  one,  192,  note. 

license  for  dog  may  be  required,  197,  note. 

liability  of  owner  where  animal  vicious,  192. 

evidence  of  reputation  of  animal  for  viciousness,  192,  note. 

knowledge  of  attempt  to  bite,  notice  of  viciousness,  192,  note. 

infectiously  diseased  sheep,  193. 

diseased  animals,  193. 

(740) 


Index. 

(The  references  are  to  sections.) 

ANIMALS— Continued. 

permitting  diseased  animals  at  large  on  highway,  193. 

bringing  horse  infected  with  glanders  into  public  place,  193. 

use  of  stable  for  diseased  animals,  193. 

where  sheep  communicate  disease  to  other  cattle,  193. 

where  diseased  cattle  enter  another's  close,  193. 

permitting  diseased  horses  to  water  at  tank  used  by  other  horses,  193. 

injury  to  child  by  colt  at  large  on  highway,  194. 

at  large  on  highway,  194. 

dog  a  nuisance  by  his  barking,  195. 

use  of,  shocking  sense  of  decency,  196,  414. 

putting  jacks  and  stallions  to  mares,  196. 

when  municipality  no  power  to  prohibit  keeping  of  stallions  for  service, 
196. 

ordinances  as  to,  197. 

ordinances  as  to  dead  animals,  198. 

dead  animals  not  a  nuisance  per  se,  198,  411. 

when  dead  animals  a  nuisance,  198. 

owner  of  dead  animal  has  property  rights  in,  198. 

municipality  can  not  deprive  owner  of  property  in,  without  due  process 
of  law,  198. 

where  depositing  carcasses  of,  in  certain  place  under  statute,  a  nuisance, 
198. 

particular  ordinance  a«  to  dead  animals  construed,  198,  note. 

dead  animal  on  railroad  right  of  way  contributory  negligence,  199. 

obstruction  of  highway  by  exhibition  of  wild  animals,  255. 
ANNOYANCE: 

difficult  to  define  amount  of  which  is  necessary,  19. 
ANTICIPATED   NUISANCE: 

noises  from  building  being  erected,  181. 

proceeding  to  enjoin  erection  of  stable,  205. 

See  Equity,  Remedies. 
APPLIANCES: 

duty  as  to  care  and  use  of,  in  trade  or  business,  89. 
APPRAISERS: 

award  of,  when  not  binding,  278. 
APPREHENSION: 

of  danger,  19. 

See  Equity,  Remedies. 
AQUEDUCT    BOARD: 

entitled  to  remedy,  441. 
ARTIFICIAL   CANAL: 

See  Canal. 
ARTIFICIAL   CHANNEL: 

casting  drainage  on  land,  306. 

See  Channel. 
(741) 


Index. 

(The  references  are  to  sections.) 

ASHES: 

deposited  on  land,  396. 
ASHPIT: 

nuisance,  Removal  Act  includes,  4. 
ASPHALT  FACTORY: 

fumes  from,  9,  note. 
ASSESSMENT  OF  DAMAGES: 

See  Damages. 

ASSIGNATION: 

house  of,  391,  note. 

See  House  of  III  Repute. 
ASSIZE  OF  NUISANCE,  360,  note. 
ATTORNEY  GENERAL: 

may  bring  suit  to  restrain  purpresture,  66. 

excess  of  exercise  of  power  by  public  body,  action,  288. 

indictment  by,  413. 

or  other  prosecuting  officer,  when  may  sue,  437,  438. 

when  he  alone  may  sue,  439. 
ATTORNEY'S  ADVICE: 

no  defense,  486. 
ATTRACTIVE  NUISANCE: 

children,  18. 
AUTOMOBILES: 

use  of,  upon  highways,  212,  note. 
AUTOMOBILE  STATION: 

at  summer  resort,  not  nuisance,  411. 
AWARD: 

condemnation  proceedings,  party  not  bound  without  notice,  278. 

AWNING: 

where  authorized  by  municipality,  79. 

in  violation  of  ordinance,  a  nuisance,  258. 

license  to  erect,  may  be  revoked,  258,  note. 

BACTERIA : 

survival  in  water,  pollution,  299,  309. 

Chicago  drainage  case,  299. 
BAKERY: 

not  a  nuisance  per  se,  106. 

must  not  cause  substantial  injury  or  unnecessary  annoyance,  106. 

damage  to,  from  noisome  smells,  158. 
BALANCING    CONVENIENCES: 

See  Defenses. 

BALL  GAMES: 

See  Baseball. 

BALL  PARK: 

when  not  ground  for  relief,  390. 

(742) 


Index. 

(The  references  are  to  sections.) 

BANKING  OPERATIONS : 

when  carried  on  contrary  to  statute,  85. 
BARBERING  ON  SUNDAY: 

not  indictable,  414. 
BARB  WIRE   FENCE: 

encroaching  on  highway,  injury  to  horse  by,  239. 

by  railroad  track,  not  a  nuisance  per  se,  239,  note. 

ordinance  as  to,  construed,  339. 

dangerous  to  stock,  404. 
BARGE : 

stopped  by  bridge  over  navigable  waters,  private  action,  434. 
BARK: 

when  no  prescriptive  right  to  deposit  bark  from  tannery  in  a  stream,  57. 
BARN: 

not  a  nuisance  per  se,  204. 

where  manure  deposited  from,  a  nufeance,  204. 

close  to  sidewalk,  a  nuisance,  233. 
BARNYARDS: 

polluting  city's  water  supply,  304. 
BASEBALL : 

game  not  per  se  a  nuisance,  390. 

games  on  Sunday,  390. 
BATHING: 

in  lake  which  is  source  of  city  water  supply,  304. 
BAWDY  HOUSE, 

where  licensed  by  municipality,  79. 

nuisance,  per  se,  79. 

or  house  of  ill-repute,  391. 

private  action,  public  nuisance,  436. 
BAY: 

See  Navigable  Watebs,  Watebs. 
BAY  WINDOW: 

See  Bow  Window. 
BEER  GARDEN: 

private  action,  public  nuisance,  436. 
BEES: 

whether  a  nuisance,  392. 
BELLS: 

ringing  of,  authorized  by  legislature,  71. 

ringing  of,  operation  of  railroad,  75. 

ringing  of,  as  a  nuisance,  179. 
BILL  BOARD: 

on  sidewalk  a  nuisance,  258. 

validity  of  ordinance  prohibiting  erection  of,  263. 

when  destruction  of  by  municipality  not  justified,  348. 

not  nuisance,  403. 

(743) 


Index. 

(The  references  are  to  sections.) 

BILLIARD  ROOM: 

not  a  nuisance  when  no  gaming,  395. 
BLACKSMITH  SHOP: 

not  a  nuisance  per  se,  107. 

when  it  becomes  nuisance,  107. 

adjoining  hotel  a  nuisance,  107. 

court  will  not  enjoin  use  of  building  for,  107. 

duty  as  to  maintenance  of,  144. 

smoke  from,  144. 
BLACKSTONE: 

general  definition  of  nuisance  by,  3. 

and  Hawkins'  definitions  of  public  nuisance,  6. 

definition  of  private  nuisance,  9. 
BLASTING: 

in  excavating  for  railroad  roadbed,  108. 

liability  of  contractor  on  public  work  for  injury  caused  by,  108. 

individual  liable  for,  though  not  negligent,  108. 

use  of  nitroglycerine,  386. 
BLEACHING: 

manufacturing,  pollution  of  water,  303. 
"  BLIND  TIGER/'  399. 
BLY  CASE: 

rule  in,  usable  value,  492. 
BOARDING  HOUSE: 

injury  to,  by  freight  depot  interfering  with  travel  on  highway,  234. 
BOARD  OF: 

aldermen,  sewer  constructed  by,  280. 

aqueduct  board  entitled  to  remedy,  441. 

chosen  freeholders,  liability  of,  449. 

chosen  freeholders,  judgment  to  repair  bridges,  when  erroneous,  449,  note. 

health,  power  of  legislature  to  authorize  abatement  of  nuisance  by,  81  n. 

health  may  require  that  rags  be  disinfected,  83. 

health,  construction  of  act  authorizing  abatement  of  nuisances  by,  con- 
strued, 171. 

health,  pollution  of  waters,  288. 

health  may  abate  nuisance  caused  by  cattle  yards  and  pens,  210,  note. 

health  may  remove  buildings  liable  to  fall,  238,  note. 

health  of  State,  remedy  for  pollution  of  city  water  supply,  304. 

health  of  town  may  abate  nuisance  which  pollutes  water  supply,  304. 

health  constructing  large  drain  to  abate  nuisance,  307. 

health,  powers  of,  as  to  nuisances  affecting  public  health  or  safety,  331. 

health  may  be  authorized  by  municipality  to  abate  a  nuisance,  331,  note. 

health,  license  for  an  act  from  municipality  does  not  affect  right  to  abate, 
331,  note. 

health,  effect  of  error  of  judgment  by  in  abatement  of  nuisance,  331,  note. 

health,  notice  by,  to  abate  pre-requisite  to  abatement  by,  331,  note. 

(744) 


Index. 

(The  references  are  to  sections.) 

BOARD  OF— Continued. 

health  can  not  by  mere  declaration  make  thing  a  nuisance,  331,  note;  333 
health,  not  prerequisite  that  it  determine  that  nuisance  exists,  440. 
health  entitled  to  remedy,  440. 
supervisors,  powers  of,  332. 

supervisors,  liability  of,  sewer  nuisance,  449,  note, 
trade  effect  of  act  done  under  order  of,  in  England,  68. 
water  commissioners,  injunction  against,  278. 
water  commissioners,  taking  or  using  of  land,  condemnation,  278. 
works  differs  from  company  carrying  on  undertaking  for  own  benefit   288 
BOAT: 

stopped  by  bridge  over  navigable  waters;   private  action,  434. 
BOAT  HOUSE: 

abatement  by  individual  of,  as  a  nuisance,  375. 
BOILERS: 

See  Steam   Boilers. 
BONE  BOILING  ESTABLISHMENTS: 

See  Fat  and  Bone  Boiling  Establishments. 
BOOM: 

for  logs  a  nuisance,  273. 
construction  of,  statute  Idaho,  275,  note. 
BOOTH: 

under  elevated  stairs,  260.,  note, 
on  sidewalk,  for  sale  of  newspapers,  78. 
BOROUGH  OFFICERS : 

indictable  for  neglect  to  abate  nuisance,  414. 
BOWLING  ALLEYS: 
2,  note. 

nuisance  by  statute,  83. 

municipality  may  be  authorized  by  legislature  to  prohibit,  84. 
will  not  be  enjoined  where  located  in  city,  109. 
not  a  nuisance  per  se,  109. 

one  subject  to  indictment  at  common  law  for  maintaining,  109. 
public  nuisance  at  common  law,  109. 
power  of  municipality  to  prohibit,  109. 
BOW  WINDOW: 

projecting  over  building  line  not  enjoined  as  a  nuisance,  233. 
See  Highways,  Light  and  Air, 
BREAKWATER: 

when  a  nuisance,  275. 
BREWERIES  AND  DISTILLERIES: 

vapors  and  stenches  from  a  nuisance,  110. 
not  a  nuisance  perse,  110. 
when  erection  of  will  not  be  restrained,  110. 
impure  water  from,  discharged  into  street,  302. 
closing  of,  by  municipality  as  a  nuisance,  372. 

(745) 


Index. 

(The  references  are  to  sections.) 

BREWERY  PUMPS: 

jars  and  vibrations  from,  188. 
BREWHOUSE: 

action  on  case,  34. 
BRICK  BURNING: 

See  Brick  Kilns 

BRICK  KILNS: 

when  prescriptive  rights  not  acquired  to  maintain,  57. 
effect  of  authority  to  maintain,  76. 
nuisance  by  reason  of  location,  111. 

where  nuisance  to  adjoining  owner  may  be  enjoined,  111. 
not  a  nuisance  per  se,  111. 
smoke  and  gases  from,  111. 
smoke  from,  145. 
smoke  from,  injuring  trees,  145. 
smoke  from,  polluting  air  of  dwelling,  145. 
smoke  from,  injuring  health,  145. 
charter  for,  does  not  justify  smoke  nuisance,  147. 
noisome  smells  from,  158. 
BRIDGE : 

where  authorized  over  navigable  river,  70. 

interference  with,  exclusive  right  to  maintain  a  nuisance,  117. 

neglect  to  keep  in  repair  a  nuisance,  214. 

special  injury  to  individual  where  unsafe,  220. 

for  railroad  purposes  in  highway,  250. 

a  nuisance  when  constructed  without  authority.  273. 

when  indictable  as  nuisance,  274. 

reasonably  necessary  for  ordinary  contingencies  when  built  by  railroad, 
274. 

power  to  erect  implies  power  to  repair,  274. 

constructed  by  concurrent  authority  of  State  and  Federal  government,  274. 

over  navigable  waters,  274. 

approval  of  Secretary  of  War  as  to,  274. 

when  bridge  may  be  rebuilt  over  navigable  waters,  274. 

Wheeling  bridge  case  considered,  299. 

and  approaches,  railroads,  317. 

powers  of  State  as  to,  326,  note. 

abatement  of  by  individual,  371. 

private  action,  public  nuisance,  434. 

connecting  saloon,  right  of  city  to  sue,  439. 

corporation  may  bring  suit  against,  442. 

Brooklyn,  lessee  of  warehouse  part  of,  suit  to  enjoin,  445,  note, 
liability  for  failure  to  repair,  449. 

judgment  to  repair  when  erroneous,  chosen  freeholders,  449,  note. 
BROOKLYN  BRIDGE: 

lessee,  warehouse  part  of  abutment,  suit  to  enjoin,  445,  note. 

(746) 


Index. 

(The  references  are  to  sections.) 

BROTHELS: 

private  action,  public  nuisance,  436. 

See  House  of  Ill-Repute. 

BUILDERS'  MATERIALS : 

ignition  from  unknown  cause,  388. 
BUILDING  MATERIALS: 

placing  of,  in  highway,  229. 

BUILDINGS: 

erected,  reasonable  and  lawful  use  of  property,  33. 

erection  of,  reasonable  use  of  property,  34. 

coal  and  wood  house  darkening  windows,  37. 

preventing  circulation  of  air,  37. 

erected  to  another's  injury,  27. 

motive  or  intent  in  erecting,  43. 

on  bed  of  lake  a  purpresture,  63. 

along  river  side,  273. 

statute  prescribing  thickness  of  walls  does  not  authorize  nuisance  by  use 

of  building,  77. 
not  a  nuisance  though  business  therein  is,  101. 
injunction  against  erection  of,  for  a  business  or  trade.  103. 
erection  of,  to  be  used  as  a  brewery  will  not  be  enjoined,  110. 
anticipated  noises  from,  when  erected,  181. 
proceeding  to  enjoin  erection  of,  for  a  stable,  205. 
proceeding  to  enjoin  proposed  use  of,  as  a  stable,  206. 
columns  of  encroaching  on  sidewalk  and  causing  special  injury,  220,  424. 
encroaching  on  highway,  233. 
encroaching  on  street  a  purpresture,  61. 
on  public  square  a  public  nuisance,  233. 
where  liable  to  fall  into  highway,  238. 

liable  to  fall  on  adjoining  property  a  private  nuisance,  238,  note. 

burnt  and  dangerous,  4,  note. 

unsafe,  remedy,  415,  note. 

municipality  may  prohibit  maintenance  of  wires  on  roofs  of,  339. 

power  of  municipality  as  to  erection  of,  341-344. 

right  of  municipality  to  destroy,  349,  350,  351. 

where  nuisance  consists  in  use  of,  abatement  by  individual,  377. 

use  for  house  of  ill-fame  does  not  justify  destruction,  377. 

when  restoration  may  be  enforced  in  ease  of  destruction,  377. 

for  public  entertainment,  liability  of  lessor,  464. 

See  Dwelling  House,  Fire  Limits,  Structures.  Wooden  Buildings. 
BURDEN  OF  PROOF : 

of  showing  prescriptive  right,  55. 

BURGESS: 

liability  of,  for  destruction  of  building,  350. 

(747) 


Index. 

(The  references  are  to  sections.) 

BURIAL: 

legislature  may  regulate,  393. 

ordinance  prohibiting  burials  within  city  limits  invalid,  338. 
See  Cemeteries,  Tomb. 
BURIAL  GROUNDS: 

not  nuisances  per  se,  393. 

See  Cemeteries,  Tomb. 
BURIAL  LOT: 

obstruction  of  access  to,  special  injury,  424. 
BURNT  BUILDINGS: 

Massachusetts  statute,  4,  note. 
BUSINESS: 

may  be  nuisance  though  lawful,  2,  note 

necessity  of  proving  it  in  fact  a  nuisance,  16. 

lawful  in  itself  may  be  conducted  on  one's  property,  32. 

when  and  when  not  a  nuisance  per  se,  16. 

useful  one,  some  discomfort  produced,  insufficient,  21. 

where  great  manufacturing  works  are  carried  on  trifling  inconveniences 
disregarded,  21. 

of  butchering,  when  indictable,  414. 

See  Trade  or  Business. 
BUTCHERING : 

when  indictable,  414. 
BUTTS : 

or  heaps  of  stone  in  navigable  river,  273. 
BY-LAWS: 

of  city  as  to  house  of  ill-fame,  391,  note. 

CABBAGE: 

cooking  of,  not  necessarily  a  nuisance,  394. 
CABLE  CARS: 

jarring  from  use  of  steam  engine  to  operate  cable,  188. 
CALIFORNIA: 

code,  definition  nuisance,  4,  note;   7,  note;   10,  note. 
CALVES: 

bleating  of,  in  cattle  pens,  208. 
CANAL: 

with  relation  to  definition  of  public  nuisance,  7 

where  construction  of,  legalized,  71. 

cannot  confiscate  private  property  in  construction  of,  74. 

water  from,  making  stagnant  pools,  305. 

diversion  of  water  by  insufficient  artificial  canal,  306. 

entitled  to  protection  from  pollution,  307. 
See  Ditch,  Drain. 
CANNING  FACTORY: 

waste  from,  a  nuisance,  85. 

noisome  smells  from,  158. 

(748) 


Index. 

(The  references  are  to  sections.) 

CAR: 

upon  railroad,  common  nuisance,  6,  note. 
CAR  BARNS: 

noises  from,  as  a  nuisance,  186. 
CARBON  OIL: 

in  tanks  and  warehouses,  387. 
CARCASSES: 

establishment  for  rendering,  degree  of  pollution  of  water,  310. 

of  dead  animals,  411. 

of  animal,  9,  note,  25. 

of  animal,  common  nuisance,  6,  note. 
CARE: 

See  Duty,  Negligence 

CARGO: 

destruction  of,  common  nuisance,  6,  note. 
CARNIVAL : 

structure  for,  encroaching  on  street  a  nuisance,  215. 
CASE: 

action  on,  34,  361,  426. 

See  Remedies. 
CATTLE : 

befouling  stream,  311. 

loss  in  weight  of,  damages,  329. 

waters  potable  by,  no  defense  for  pollution,  482. 
See  Animals,  Stock. 
CATTLE  PENS: 

4,  note. 

common  nuisance,  6,  note. 

noise  and  smell  from,  9,  note. 

bleating  of  calves  in,  208. 

duty  of  railroads  as  to,  71,  note. 

as  a  nuisance  generally,  208. 

used  in  connection  with  slaughter  houses  a  nuisance,  208. 
CATTLE  YARDS: 

location  of,  where  statute  permissive,  76. 

where  maintained  by  railroad  company,  209 

as  a  nuisance  generally,  208,  209. 

may  be  nuisance  though  railroads  required  to  furnish  facilities  for  ship- 
ping live  stock,  209. 

construction  and  maintenance  as  affected  by  ordinance,  210. 

when  nuisance  may  be  abated  by  board  of  health.  210,  note. 
CEILING: 

unsafe,  403. 
CELLAR  DOORS  or  openings  in  sidewalk,  466. 
CELLARS: 

deposit  of  earth  from,  in  highway,  229. 

(749) 


Index. 

(The  references  are  to  sections.) 

CELLARS— Continued. 

filling  of  by  municipality  to  abate  alleged  nuisance,  346,  n. 

percolations  into,  382. 
CEMENT  WORKS: 

where  located   in  manufacturing  district,   96. 
CEMETERIES : 

power  of  municipality  to  declare  cemetery  a  nuisance,  338. 

whether  nuisances.  393. 

private  action,  public  nuisance,  436. 

location  of,  393. 

lot,  unsightliness  of,  393. 

See  Burial,  Tomb. 
CESSPOOL: 

nuisance,  removal  act  includes,  4. 

disease  germs  from  polluting  water,  283. 

sewage  discharged  into  street,  302. 

percolations,  314. 

municipality  may  abate  use  of,  348. 

defective,  remedy  in  equity,  406. 
CHAFF: 

from  grain  threshing  machine,  143. 
CHANCERY: 

See  Equity. 

CHANNEL: 

of  water  course,  power  of  city  to  change,  306. 

sufficiency  or  insufficiency  of,  to  prevent  overflow,  306. 

casting  drainage  on  land,  306. 

or  drain,  interposition  of  equity,  416. 
CHARTER: 

of  city  violated  in  keeping  of  explosives,  385. 

of  city  as  to  houses  of  ill-fame,  391,  note. 
CHEMICAL  ANALYSIS: 

pollution  of  waters,  299. 
CHEMICALS: 

or  explosives,  385. 
CHICAGO : 

drainage  case,  299. 
CHIEF  BURGESS: 

when  indictable,  449,  note. 
CHIEF  OF  POLICE: 

liability  of,  449. 
CHILDREN : 

attractive  nuisance,  18. 

specially  injured  by  obstruction  of  access  to  burial  lot,  424. 
CHIMNEYS : 

emission  of  smoke  from,  150,  152. 

where  constructed  too  low,  143. 

(750) 


Index. 

(The  references  are  to  sections.) 
CHINESE  LAUNDRY: 

may  be  enjoined  from  causing  injury,  122. 
CHOSEN  FREEHOLDERS: 

See  Boaed  OF. 
CHURCH: 

liquor  nuisance  near  church,  205. 

See  Corporation. 
CHURCH  BELLS: 

ringing  of,  as  a  nuisance,  179. 
CIGAR  STORE: 

where  slot  machine  used,  409. 
CINDERS: 

nuisance  occurring  seldom,  24. 
CIRCULARS: 

municipality  may  prevent  distribution  of,  263. 
CIRCUS: 

performance,  temporary  nuisance,  24,  note. 

a  nuisance  where   located   on    land   dedicated  for   purposes   of   a  grave- 
yard, 115. 

noises  caused  by,  176. 
CITIZEN: 

may  sue,  446. 
CITY: 

See  Municipality 
CITY  COUNCIL: 

See  Municipality. 
CIVIL  CODE: 

See  Code. 
CIVIL  PROCEDURE  CODE: 

See  Code. 
CLASSES: 

law  knows  no  distinction  of,  42. 
COAL  CHUTE: 

maintained  by  railroad,  75,  note. 

smoke  and  dust  from,  147. 
COAL  ELEVATORS: 

noises  from,   184. 
COALHOLES: 

in  sidewalk,  231,  468. 

in  sidewalk  a  nuisance  in  New  York,  231. 

if  properly  constructed  and  covered  not  a  nuisance,  231. 

effect  of  license  to  make  in  sidewalk,  232. 
COAL  HOUSE: 

darkening  windows,  37. 
COAL  MINES: 

right  to  develop  and  operate,  100. 

(751) 


Index. 

(The  references  are  to  sections.) 

COAL  OIL: 

location  of  tanks  a  factor,  388. 
COAL  SHEDS: 

maintenance  of  by  railroad,  76,  note. 

causing  injury,  private  action,  436. 

common  nuisance,  6,  note. 
COASTING: 

on  highway  endangering  safety  of  travelers,  255,  258. 
CODE: 

definition  of  nuisance,  4 

definitions,  private  nuisance,  10. 

statutory  definition  of  public  nuisance,  7. 

penalty  not  recoverable  in  injunction  suit,  414,  note. 

California  definitions  nuisance,  4,  note;   7,  note;    10,  note. 

Georgia,  definitions,  10,  note. 

Georgia,  definition  public  nuisance,  7,  note. 

Idaho,  definition  nuisance,  4,  note;   7,  note;    10,  note. 

Iowa,  definition  nuisance,  4,  note. 

Montana,  definition  nuisance,  4,  note;    10,  note. 

penal,  of  New  York;  definition  of  public  nuisance,  7,  note. 

North  Dakota,  definition  nuisance,  4.  note;  7,  note;    10,  note. 

penal  of  Porto  Rico,  definition  ptiblic  nuisance,  7,  note. 

South  Dakota,  definition  nuisance,  4_,  note;  7,  note;   10,  note. 

Washington,  definition  nuisance,  4,  note;   7.  note;    10,  note. 
See  Statute. 
COKE  OVENS: 

though  lawful,  may  be  a  nuisance,  112. 

smoke  from  operation  of,  143. 

smoke,  soot,  cinders  and  gas  from,  a  nuisance,  112. 

may  recover  damages  for  nuisance  caused  by,  112. 
COLLECTOR: 

of  rent;  service  of  notice  on,  455,  note. 
COLLIERY: 

pollution  of  waters  by,  277. 
COLUMNS: 

of  adjoining  building  encroaching  on  sidewalk  causing  special  injury  to 
individual,  220. 

See  Buildings,  Highways. 
COMFORT: 

of  human  existence  interfered  with,  19. 

ordinary,  of  human  existence  impaired,  22. 
COMING  INTO  NUISANCE : 

smoke  from  iron  works,  143. 

where  municipality  has  maintained  dump  for  garbage,  355. 
See  Defenses. 


(752) 


Index. 

(The  references  are  to  sections.) 

COMMERCE: 

clause,  ordinance  as  to  smoke  from  tugboats,  153. 

power  of  Congress  over  navigable  waters,  274. 

power  of  Congress  to  regulate,  299. 
COMMISSIONERS: 

control  of  sewers,  city  still  may  be  liable,  279. 
COMMISSIONERS  OF  HIGHWAYS: 

statute  as  to  removal  of  fences  by,  379. 
COMMON: 

appropriation  of  by  individual  a  purpresture,  66,  note. 

obstruction  of  right  of  a  nuisance,  213. 
COMMON  COUNCIL: 

liability  of,  449. 
COMMON  DECENCY: 

exhibiting  stud  horse  in  street,  indictment,  414. 

indecent  exposure,  indictment,  414. 

offense  against,  indictment,  414. 

See  Animals 
COMMON  LAW: 

definition  nuisance  not  changed  by  statute,  Georgia,  4,  note. 
COMMON  NUISANCE: 

Hawkins  and  Blackstone's  definitions  of,  6. 

See  Public  Nuisance. 
COMMON  OR  PUBLIC  NUISANCE: 

defined,  5. 
COMMON  SCOLD,  402. 

See  Scold. 
COMMUNITY: 

as  factor  in  definition,  5,  7. 
CONCERT  HALL: 

license  for,  does  not  authorize  nuisance,  74. 
CONDEMNATION: 

of  land,  sewerage,  278. 

proceedings,  when  award  of  appraisers  not  binding,  278. 

taking  private  property  by  polluting  water  or  overflowing  land,  278. 
See  Eminent  Domain. 
CONGRESS: 

act  of,  legalizing  bridge  over  navigable  river,  67. 

act  of,  declaring  smoke  a  nuisance,  83. 

power  of,  as  to  bridges  over  navigable  waters,  274. 

power  of,  to  regulate  commerce,  299. 

power  of,  to  order  abatement  of  nuisance  on  public  lands,  373. 
See  Statute. 
CONSEQUENTIAL  DAMAGES: 

See  Damages. 


(753) 


Index. 

(The  references  are  to  sections.) 

CONSIGNEE: 

explosion  while  gunpowder  in  hands  of,  386,  note. 
CONSTITUTION  : 

Federal  or  State,  limitations  over  navigable  waters,  bridges,  274. 
CONTAGIOUS  DISEASES: 

destruction  of  building  to  prevent  spread  of,  350,  397. 
CONTINUING  INJURY: 

See  Equity,  Injury. 
CONTINUING  NUISANCE,  11.  note. 

measure  of  damages  in  case  of  a  livery  stable,  211. 

as  factor  of  remedy,  415. 

liability,  454-460. 

damages,  494,  495,  596. 
CONTINUOUS: 

and  constantly  recurring  injury,  equity,  415,  416. 
CONTRACTOR: 

defined,  472,  note. 

sub-contractor,  etc.,  liability,  472. 

negligence  of,  work  not  itself  dangerous,  472,  note. 
CONTRIBUTORY  NEGLIGENT  E: 

prevention  of  injury  or  damage  by  plaintiff,  45,  46. 

maintenance   of   another   nuisance;   other   or   additional   damage  of   same 
character,  47. 

dead  animal  on  railroad  right  of  way;   failure  of  person  injured  to  enter 
and  remove  not  contributory  negligence,  199. 

defenses,  481. 
CONSTITUTION: 

provisions  of,  as  to   protection  of   property   do  not  affect   right  to   sum- 
marily abate.  380. 
CONSTITUTIONALITY: 

See  Statute. 
CONTAGIOUS  DISEASE,  397. 
COM  ENIENT  PLACE: 

in  case  of  trade  or  business,  95. 
CONVICTS. 

municipality  no  power  to  prevent  working  of,  on  streets,  262. 
COOKING : 

and  cooking  ranges,  394. 
CORN  MILL: 

avoiding  nuisance  from,  187. 
CORPORATION: 

befouling  water,  4,  note. 

neglect  of,  common  nuisance,  6,  note. 

duty  as  to  exercise  of  powers,  73. 

entitled  to  remedy,  442. 

(754) 


Index, 

(The  'references  are  to  sections.) 
CORPORATION—  Continued. 

religious  corporation,  action  by  or  by  trustees,  442. 
liability  of  private  corporations,  450,  451. 
when  proof  of  existence  of,  necessary,  450,  note, 
when  cannot  be  prosecuted,  450,  note, 
liability  of  officers  of  private,  452. 

See  Municipality. 
COSTS: 

of  abating  nuisance,  who  liable  for,  381. 
CO-TENANT: 

need  not  be  joined  with  tenant  in  suit,  445. 
COTTON  GIN: 

pollution  of  air  by,  113. 

sufficiency  of  allegation  in  action  for  nuisance  caused  by,  113. 

erection  of,  will  not  be  enjoined  113. 

noise,  dust  and  smoke  from,  a  nuisance,  113. 

near  residence  a  nuisance,  113. 

not  a  nuisance  per  se,  113. 
COTTON  MILL: 

noisome  smells  from,  158. 
COUNTY: 

right  of  to  have  deposits  of  mining  debr-is  enjoined,  277. 
See  Municipality. 
COUNTY  COMMISSIONERS: 

power  of  to  destroy  building  to  prevent  spread   of  contagious  diseases, 
350,  note. 
COUNTY  SUPERVISORS: 

liability  of.  pollution  of  stream  by  sewage,  449,  note. 
COW: 

injury  by,  where  vicious,  192. 
COW  STABLE: 

ordinance  as  to,  construed,  335,  note. 
CREAMERY, 

noisome  smells  from,  157. 

causing  refuse  from,  to  flow  on  to  another's  land,  160. 

individual  may  sue,  though  smells  a  public  one,  168. 

measure  of  damages  for  discharge  of  refuse  from,  170. 

refuse  from,  pollution  of  waters,  303. 
CREATOR  OF  NUISANCE: 

See  Eeectok. 
CREEK: 

used  for  discharge  of  sewage,  283. 

may  be  filled  by  municipality  where  a  nuisance,  348. 
See  Navigable  Waters,  Waters. 
CREMATION: 

5,  note. 

(755) 


Index. 

(The  references  are  to  sections.) 

CREMATORY: 

burning  dead  bodies,  411,  note. 

for  garbage,  when  not  enjoined,  411. 
CRIB: 

in  public  river,  5,  note. 
CRIB  BULKHEAD: 

dumping  board  on,  396. 
CROPS: 

injury  to,  306. 

damages,  329. 

injury  to  from  fertilizer  factory,  118. 
CROQUET: 

peculiar  susceptibility  to  noise  caused  by  delicate  condition  of  female,  20. 
CRUDE  OIL: 

storage  of  authorized  by  statute,  no  nuisance,  387. 

dangerous  nuisances,  387. 
CULVERT: 

when  no  prescriptive  right  by  railroad  tc  maintain,  57. 

injury  and  damages  from  construction  of,  307. 

insufficient  to  carry  away  rainfall,  317. 
CUPOLO: 

when  no  prescriptive  right   to  maintain,  57. 

DAIRY: 

petition  in  action  for  noisome  smells  from,  157. 

business,  pollution  of  city  water  supply  by,  304. 

ordinance  as  to,  construed,  335,  note. 

ordinance  requiring  permit  for,  construed,  336. 
DAM: 

abatement  of,  4,  note. 

injunction  against,  4,  note. 

motive  or  intent  in  erecting,  43. 

where  authorized  by  State  not  a  public  nuisance,  67. 

may  be  a  nuisance  though  authorized  by  legislature,  74. 

without  a  fishway  a  nuisance  by  statute,  83. 

causing  stagnant  water  to  emit  noisome  smells,  158. 

temporary  obstruction  of  stream  to  remedy  defective  lock  in  dam,  273. 

State  may  authorize  erection  of,  275. 

obstructing  fish,  276. 

generally.  319,  320. 

back  water,  321. 

overflow,  flooding,  evidence,  322,  323. 

increasing  height  of,  324. 

whether  flash  boards  part  of,  324. 

constructed  by  municipality,  325. 

navigable  waters,  326. 

(Y56) 


Index. 

(The  references  are  to  sections.) 

DAM — Continued. 

power  of  State  as  to,  326. 

restoration  of,  parol  license,  327. 

prescription,  328. 

right  to  remove  where  authorized  by  statute,  348. 

destruction  of  by  individual,  371. 

exercise  by  individual  of  right  to  abate,  375. 

abatement  by  individual  of,  378. 

renewal  of,  perpetual  injunction,  407. 

remedies,  civil  and  criminal,  407. 

negligently  constructed,  407. 

feeder  dam,  indictment,  407. 

raised  in  violation  of  statute;   private  action,  436. 
DAMAGE : 

special  damage  recoverable,  13,  note. 

special  and   particular   damage   may  give  private   action  for   public  nui- 
sance, 14. 

evidence  of  consequential  damage  after  period  specified,  17. 

gist  of  action  to  damage,  17. 

must  be  sensible  and  real,  20,  note;  39. 
must  be  serious  and  substantial  for  equitable  relief,  22. 
may  be  presumed  when  legal  right  invaded,  22. 
direct  and  consequential,  39. 
extent  and  character  of,  generally,  39. 
inferred  where  nuisance  exists,  39. 
private  action  for  special  damage,  39,  422-436. 

may  be  substantial  though  land  sold  for  as  large  sum  as  before,  22. 
prevention  of  by  plaintiff,  contributory  negligence,  45,  46. 
other  or  additional  damage  of  same  character;   maintenance  of   another 
nuisance,  47. 

See  Defenses. 
character  of  for  equitable  relief,  415. 

must  differ  in  kind  and  degree;   private  person,  public  nuisance,  423,  424. 
remedy  though  no  actual  damage  proven;   easement  of  view,  424. 

See  Injury. 
DAMAGES : 

impairment  of  value  of  property  as  factor  in  nuisance,  2,  note. 

right  to  recover,  4,  not  3. 

nominal,  may  be  recovered  when  legal  rights  clearly  invaded,  22. 

must  be  sensible  and  real,  22,  note. 

may  be  nominal  where  right  and  invasion  clear,  39. 

amount  when   immaterial   in  equity,   39. 

some  damage  must  be  proved  where  injury  consequential,  39. 

impairment  of  or  diminution  in  value  of  property  40. 

elements  or  factors  of,  40. 

when  evidence  to  enhance  inadmissible,  odors,  40. 

(757) 


(The  references  are  to  sections.) 

DAMAGES — Continued. 

duty  to  lessen,  contributory  negligence,  45. 
liability  for,  in  case  of  elevated  railway,  69. 
liability  for,  though  act  authorized  by  legislature.  69. 
when  not  recoverable  as  for  a  permanent  injury  from  a  trade  or  busi- 
ness, 85. 
recovery  of,  where  nuisance  obviated  after  action  commenced,  91. 
measure  of,  for  smoke  from  electric  light  plant.   143. 
in  case  of  smoke  nuisance,  15G. 

for  injury  to  hotel  property  by  smoke  nuisance,  156. 
measure  of,  for  smells  from  smelting  works.  IT1'. 
measure  of,  for  odors  from  garbage,  170. 
measure  of,  for  smells  from  sewage  disposal  works,  170. 
measure  of,  for  smells  caused  by  refuse  from  creamery,   170. 
measure  of,  for  nuisance  caused  by  smells,  170. 
measure  of,  for  smells  where  nuisance  public.   J70. 
for  noises,  jars  and  vibrations,  191. 
measure  of,  for  nuisance  by  animal  enclosures,  211. 
measure  of,  for  nuisance  caused  by  stock  yard-.  211. 
measure  of,  for  nuisance  caused  by  livery  stable,  211. 
recovery  fur  injury  to  rental  value  by  excavations  in  highway,  230. 
evidence  upon  question  of.  for  nuisance  in  highway,  259. 
for  nuisance  in  highways,  259. 
measure  of,  for  nuisance  not  permanent.  259. 
measure  of,  for  nuisance  in  highway  where  permanent,  _' 
punitive  damages  for  willful  obstruction  of  highway.  •_'•">'.». 
measure  of,  for  unlawful  operation  of  railroad  in  highway,  259. 
not  limited  to  nominal,  for  nuisance  In   railroad  in  highway,  259,  note, 
assessable  for  injury  to  fishery,  276. 
assessment  of,  where  stream  taken  for  sewerage.  278. 
difficulty  in  admeasuring  does  not  preclude  recovery.  305. 
ascertainment  of.  difficult,  jury.  306. 

for  injury  to  freehold.  307. 

prospective  damages,  307. 

market  value  before  and  after  injury,  307. 

permanent   injury,  measure  of,  307. 

entire  recovery  nf  in  one  action,   permanent   injury,  307. 

actual  damages  recoverable  though  value  of  property  increased.  307. 

where  land  flooded,  324. 

rental  or  usable  value.  4  1.  329,  190,  492. 

pollution  of  water,  overflow,   flooding,  etc..  329. 

city  not  liable  for.  in  case  of  summary  abatement,  345. 

action  for.  by  individual  not  barred  by  his  abatement  of  nuisance.  374. 

not  mitigated  by  fact  that  individual  might  have  abated  nuisance,  374. 

depreciation  in  value  of  property  from  location  of  cemetery,  393. 

(758) 


Lndkx. 

(The  references  are  to  sections.) 

DAMAGES— Continued. 

difficult  to  compute,  equitable  relief,  41G. 

too  small  to  carry  costs,  relief  in  equity,  416. 

jurisdiction  retained  to  award,  after  abatement  of  nuisance,  487. 

generally,  488. 

estimation  of,  by  jury,  488,  note. 

permanent  injury;   depreciation  in  value  rule;   instances,  489. 

usable  value;  diminished  rental  value,  41,  490-492. 

rental  value;  landlord  and  tenant;   rule  in  Miller  case,  493. 

up  to  commencement  of  suit,  494. 

recovery  of  entire  damages  in  one  action,  495,  496. 

direct  and  consequential  injury,  497. 

nominal  damages,  498. 

negligence;   actual  damages,  498,  501. 

duty  to  lessen,  500. 

additional  damages,  501,  502. 

life  tenant;  rental  value.  502. 

punitive  damages,  5*03. 

pleading,  general  decisions,  504. 

waiver  of  irregularities  in  taking  land  by  accepting  damages,  505. 
DAMNUM  ABSQUE  INJURIA,  18,  30,  31,  32,  39. 

in  case  of  construction  of  railroad,   70. 

See  Maxims. 

DAMES: 

ordinance  as  to,  construed,  339. 
ordinance  void  declaring  them  nuisances,  414. 
not  nuisance,  414. 
DANGEROUS  BUILDINGS: 

under  Massachusetts  statutes,  4,  note. 
DANGEROUS  NUISANCES,  383-389. 

one  cannot  place  on  his  own  land  anything  which,  if  it  escapes,  injures 

another,  27. 
unguarded  machinery,  382. 
electric  current,  382. 
percolations  polluting  water,  382. 
owner  not  liable  to  trespassers,  382. 
generally,  382. 
negligence,  383. 
powder  magazine,  383-385. 
gunpowder,  383,  384. 
location,  how  far  material,  384. 
dynamite,  384. 
nitro  glycerine.  385. 
chemicals,  385. 
digester  in  pulp  mill,  385. 
fireworks,  385. 

(759) 


Index. 

(The  references  are  to  sections.) 

DANGEROUS  NUISANCES— Continued. 

petroleum,  gasoline,  naphtha,  crude  oils,  etc.,  387,  388. 
coal  oil  and  gasoline  tanks,  387,  388. 
spring  guns,  389. 
steam  engines  and  boilers,  398. 
DANGEROUS  SUBSTANCES: 

See  Dangerous  Nuisances. 
DEAD: 

legislature  may  regulate  interments,  393. 
DEAD  ANIMALS: 

not  nuisances  per  se,  411. 
DEAD  BODY: 

burning  of,  5,  note;  411,  note. 
DEATH : 

by  explosion  of  fireworks  during  political  campaign,  city  not  liable,  448. 
DEBT,  301. 
DECENCY,   15. 

as  element  in  definition  of  nuisance,  4,  5,  7. 
DECREE : 

ordering  certain  things  to  be  done  to  avoid  nuisance,  effect  of,  90. 
judgment  and  order  in  liquor  nuisance:    form,  etc.,  416,  note. 
See  Judgment. 
DEFENSES: 

no  justification  that   nuisance  takes  away   fractional  part   of  enjoyment, 

etc.,  24. 
none  that  injury  not  appreciable,  39. 
contributory  negligence,  prevention  of  damage,  16. 
contributory  negligence.  45.  46,   47. 
maintenance  of  another  or  similar  nuisance,  other  or  additional  damage 

of  same  character,  47. 
locating  near  existing  nuisance,  49. 

none  that  trade  or  business  was  originally  remote  from  habitations,  54. 
that  others  contribute  to  nuisance  by  smoke,  no  defense,  142. 
purchasing  with  knowledge  of  smoke  nuisance.  143. 
that  noisome  smells  from  business  are  unavoidable  not,   157. 
fact  that  others  contribute  to  injury  no  defense,  164. 
that   most  approved   appliances   used   no  defense   where   nuisance   caused 

by  noisome  smells,    ItiT. 
reasonable  care  no  defense  in  case  of  noisome  smell-,   167. 
defendant  may  show  injury  due  to  other  cause  than  the  jar  and  vibration 

alleged,  190. 
existence  of  smaller  stable  no  defense  to  nuisance  caused  by  stable  com- 
plained of,  201. 
no  defense  that  stable  complained  of  properly  built  or  kept,  202. 
that  location  of  stable  desirable  or  convenient  no  defense,  203. 


no  defense  that  highway  not  lawfully  established  where  obstructed,  216. 

(760) 


Index. 

(The  references  are  to  sections.) 

DEFENSES— Continued. 

no   defense  for  obstructing  highway  that  it  is   less  than  the  statutory- 
width,  210. 
that  highway  differs  from  plans  no  defense  for  obstruction,  216. 
no  defense  for  obstructing  highway  that  another  under  duty  to  remove, 

217. 
no  defense  for  obstructing  highway  that  no  injury  anticipated,  218. 
nuisance  by  loading  and  unloading  goods  no  defense  that  business  lawful 

or  use  necessary,  224. 
none  that  private  premises  cannot  be  entered  on  to  abate  sewer  nuisance, 

280. 
balancing  conveniences,  canals  or  irrigating  ditches,   307. 
that  use  of  building  a   nuisance  no  defense   for  destruction   of  building, 

350. 
private  action,  public  nuisance;   others  similarly  affected,  428. 
proximate  cause;   ads  of  third  parties;   other  sources  or  causes;    others 

contributing.  47i>. 
city  liable  though  other  sources  responsible  for  sewage,  477,  note, 
pollution  of  waters  from  other  sources.  477. 
other  or  similar  nuisances;  similar  acts  by  others,  478. 
where  plaintiff  contributes  to  or  maintains  similar  nuisances,  479. 
pollution  of  water  by  plaintiff,  480. 
negligence;  contributory  negligence;  due  care,  481. 

that  water  potable  by  cattle   and  inhabitable  by  fish  no  cause  for  pollu- 
tion,  482. 
benefit  to  public;   balancing  conveniences,  483,  484. 

acquiescence,  knowledge  or  failure  to  complain;   laches;  estoppel,  485. 

statute  limitations,  485,  note. 

none  that  nuisance  created  to  abate  another,  486. 

other  instances  of,  486,  487. 

duty  to  lessen  damages,  500. 
DEFINITION : 

precise  technical  definition  of  nuisance  impracticable,  1. 

general  definition  of  nuisance,  2. 

nuisance  is  what  makes  life  uncomfortable,  2,  note. 

injury  to  legal  rights  may  be  nuisance,  2,  note. 

lawful  business  may  be  a  nuisance,  2,  note. 

nuisance  is  anything  that  produces  annoyance,  2,  note. 

impairment  of  value  of  property  as  factor,  2,  note. 

gases  or  noisome  smells  may  constitute  nuisance,  2,  note. 

of  nuisance;  unlawful  or  tortuous  act  as  factor,  2,  note. 

enjoyment  of  life  rendered  uncomfortable,  a  nuisance,  2,  note. 

nuisance  is  what  is  offensive  physically,  2,  note. 

nuisance;  injury  to  lands  or  houses,  2,  note. 

nuisance;  must  be  material  interference  with  ordinary  comfort,  2,  note. 

nuisance;  anything  not  warranted  by  law,  2,  note. 

(761) 


Index. 

(The  references  are  to  sections.) 

DEFINITION— Continued. 

life,  health,  etc.,  as  elements  of,  2,  4,  5. 
Blackstone's  general  definition  of  nuisance,  3. 
statutory  or  code  definition  of  nuisance,  4. 
safety  as  element  in,  4. 

obstruction  of  navigable  waters  as  nuisance,  4. 
decency  as  factor  in,  4. 

nuisance;  California  Code,  4,  note;   10,  note. 

nuisance  at  common  law  not  changed  by  Georgia  statute,  4,  note;  10,  note, 
nuisance;  Idaho  Codes,  4,  note;  10,  note, 
nuisance;  Indiana  statute,  4,  note;   10,  note, 
nuisance;  Iowa  Code,  4,  note, 
nuisance;  statute  Maine,  4,  note, 
nuisance;  statute  Massachusetts,  4,  note, 
nuisance;    Minnesota  statute,  4,  note, 
nuisance;  Montana  Code,  4,  note;   10,  note, 
nuisance;  Nevada  statute,  4,  note;   10,  note, 
nuisance;  North  Dakota  Codes,  4,  note;    10,  note, 
nuisance;  statute  Rhode  Island,  4,  note. 
nuisance;   South  Dakota  Codes,  4,  note, 
nuisance;   Utah  statute,  4,  note, 
nuisance;  Washington  Code,  4,  note;  10,  note, 
common  or  public  nuisance,  5. 
common  nuisance,  5,  note. 

Hawkin's  and  Blackstone's,  of  public  nuisance,  6. 
statute  or  code  of  public  nuisance,  7. 
private  nuisance,  8,  11. 
Blackstone's,  of  private  nuisance,  9. 
nuisance,  9,  note, 
actionable  nuisance,  9,  note. 

statutory  or  cede  definitions  of  private  nuisance,  10. 
of  nuisance  as  a  tort,  11. 

of  nuisance  with  reference  to  maxim  sic  utere,  11. 
of  nuisance;  sic  utere,  etc.,  as  factor,  2,  note, 
nuisance  per  se,  12. 

difficult  as  to  amount  of  annoyance,  etc.,  necessary,  19. 
of  purprestures,  59. 
purpresture  defined,  59,  note, 
of  cause  of  action,  3G4. 
"  public  "  action,  to  abate,  438,  note, 
contractor,  472,  note. 
DEGREE : 

of  annoyance,  difficult  to  define,  1,  5. 
nuisance  a  question  of,  difficult  to  define,  19. 
nuisance  a  question  of,  22. 

(762) 


Index. 

(The  references  are  to  sections.) 

DELAY : 

as  evidence  of  acquiescence  in  case  of  prescriptive  right,  58. 
See  Acquiescence,  Laches. 
DEMAND  TO  ABATE: 

nuisance,  455-458. 
DEODORIZING: 

DIRECT  DAMAGE: 


See  Sewerage. 
See  Damages. 


DISCOMFORT : 

difficult  to  define  amount  of,  which  is  necessary,  19. 
must  be  physical,  20. 
trifling,  21. 
DISCRIMINATION: 

ordinance,  335,  336. 
DISEASED  ANIMALS,  193. 
DISEASE  GERMS: 

polluting  water,  283,  299. 
evidence  as  to  effect  of,  299.  309. 
DISEASES : 

infectious  and  contagious,  397. 
DISORDERLY  HOUSE: 
a  nuisance  per  se,  12. 
power  of  municipality  as  to,  340. 
DISTILLERY : 

collection  of  wagons  in  front  of,  as  a  nuisance,  52. 
smoke  from,  where  legalized,  147. 
offal  from,  polluting  creek,  303. 

See  Breweries  and  Distilleries. 
DISTRICT  ATTORNEY : 

of  county  may  sue  civilly,  437. 
DITCH: 

nuisance;  Removal  Act  includes,  4. 

diverting  water  used  for  placer  mining,  277. 

when  not  a  nuisance,  277. 

causing  overflow  of  land,  negligence,  279. 

when  a  private  nuisance,  306. 

diverting  surface  waters  onto  land,  306. 

cut  so  as  to  let  water  upon  land,  306. 

actual  damages,  when  recoverable  for  digging  ditch,  307. 

town  no  power  to  dig  ditches  over  another's  land,  307. 

for  drainage  of  streets,  polluting  mill-race  waters,  307. 

when  city  may  divert  and  fill  up,  312. 

may  be  filled  by  municipality  where  a  nuisance,  348. 

where  filling  in  of,  by  municipality,  not  justified,  348,  note. 

(763) 


1.N  DEX. 

(The  references  are  to  sections.) 

DITCH— Continued. 

used  for  irrigating  purposes,  right  of  municipality  to  fill,  348. 

in  city;  private  action,  public  nuisance,  436. 
See  Canal,  Drain. 
DOCKAGE : 

injured;    private   action,    436. 
DOCK  COMMISSIONERS : 

dumping  board  on  crib  bulkhead,  396. 
DOCK  DEPARTMENT: 

See  Dock  Commissioners. 
DOCKS: 

wharves,  piers  and  like  structures,  275. 

individual  to  abate  must  suffer  special  injury,  .'570,  note. 

may  be  abated  by  individual.  371. 

interference  with,  by  sewer  deposits,  special  injury,  431. 
See  Piers,  Waters,  Wharves. 
DOG: 

when  a  nuisance,  192. 

if  ferocious  may  be  destroyed  by  any  one,  192,  note. 

where  injures  another  on  premises  of  owner,  192. 

a  nuisance  by  his  barking.  195. 

license  for,  may  be  required,  197,  note. 
DOMESTIC  ANIMALS: 

See  Animals. 
DRAIN : 

nuisance;  Removal  Act  includes,  4. 

polluting  city's  water  supply,  304. 

open  drain,  pollution  of  waters,  306. 

close  underground  drain;   pollution  of  water,  306. 

filling  up  same  in  highway,  307. 

single  private  drain  under  English  Public  Health  Act,  307. 

from  cemetery,  polluting  stream,  393. 

or  channel,  interposition  of  equity,  416. 

abatement  by  individual  of  nuisance  caused  by,  378. 
See  Canal,  Ditch. 
DRAINAGE : 

Chicago  drainage  case,  299. 

escape  of  sewage  into  cellar,  306. 

cast  on  land  by  artificial  channel,  306. 
DRAINAGE  DISTRICT: 

when  not  liable  in  private  suit,  279. 
DRAINAGE  SYSTEM: 

municipality  cannot  authorize  creation  of  nuisance  by,  80. 
DRAWBRIDGE : 

over  navigable  waters,  274. 

(764) 


Index. 

(The  references  are  to  sections.) 

DREDGINGS: 

from  river  deposited  on  land;  private  action,  436. 
DRINKING  WATER: 

See  Spring,  Waters. 
DUMP : 

noisome  smells  from,  158. 

municipal  liability  for  nuisance  caused  by,  355. 
DUMPING  BOARD: 

on  crib  bulkhead,  396. 
DUST: 

from  grain  threshing  machine,  143. 

from  coal  chute,  147. 
DUTY: 

omission  to  perform  duty  may  be  nuisance,  2,  4,  5,  6. 
See  Negligence. 
DWELLING : 

when  action  lies  for  nuisance  to,  19. 

one  need  not  have  been  driven  from,  19. 

air  of  polluted  by  smoke  from  brick  kiln,   145. 
DWELLING   HOUSE: 

rendered  uncomfortable,  2,  note. 

material  interference  with  ordinary  comfort  of  human  existence,  2,  note. 

use  and  occupation,  injured,  2,  note. 

right  of  municipality  to  remove,  349,  note. 
DYE  HOUSE: 

action  on  case,  34. 
DYNAMITE: 

dangerous  nuisances,   384. 

whether  storing  of  a  nuisance  per  se,  384,  note. 

village  ordinance  as  to  storage.   386,  note. 

EARTH: 

depositing  of  in  highway,  229. 
EASEMENTS: 

of  light  and  air;    prospect;   general  doctrine,   36. 

of  light,  air  and  view;  doctrine  applied  to  nuisances,  37. 

to  lands  under  tide  water,  40. 

of  view;    special   injury  to  private  person;    remedy,  424. 
See  Prescriptive  Right;  Way. 
EGRESS : 

injury  to  by  flooding  highway,  220. 

individual  has  right  of  from  his  property,  222. 

nuisance  on  highway  affecting,  222. 

See  Abutting  Owner,  Access. 
EJECTMENT:      361. 


(765) 


Index. 

(The  references  are  to  sections.) 

ELECTRIC  CURRENT: 

discharged  into  earth,  382. 
ELECTRICITY: 

where  discharge  of  current  of  into  earth  legalized,  68,  note. 
ELECTRIC  LIGHT: 

poles  and  wires  for  on  highway,  212,  258. 
ELECTRIC  LIGHT  AND  POWER  PLANT: 

where  no  other  location  available,  114. 

construction  and  operation  will  not  be  enjoined,  114. 
ELECTRIC  LIGHT  PLANT: 

smoke  from  operation  of,  143. 

noises  and  vibration  from,  176. 

noises  and  vibrations  from,  185. 

liability,  475. 
ELECTRIC  LIGHT  POLES: 

right  of  individual  as  to   abatement   of,  378. 

in  highway  not  a  nuisance,  258. 
ELECTIC  LIGHT  WIRES: 

not  properly  insulated  in  highway,  a  nuisance,  258. 

effect  of  revocation  of  license  for,  372. 
ELECTRIC  WIRES: 

removal  of  by  municipality,  372. 
ELEVATED  RAILWAY: 

liability  for  noises  and  smells  from,  69. 

liability  for  damages  caused  by,  69. 

liability  for  obstruction  of  light  and  air  by,  69. 

noisome   smells   from,    158. 

switch  of  in  highway,  247,  note. 

wooden  station  on,  private  action,  public  nuisance,  436. 
See  Railroads. 
ELEVATOR: 

See  Floating  Elevator. 
EMBANKMENTS: 

along  river,  273. 
EMINENT  DOMAIN: 

taking  of  land  by  city  for  sewer,  condemnation,  278. 

board  of  water  commissioners  taking  or  using  land,  278. 

taking  private  property  by  polluting  water  or  overflowing  land.  278. 

taking  of  property  by  city  for  sewers,  329    (Appendix  A). 

destruction  of  building  as  a  nuisance  not  an  exercise  of,  352,  note. 
See   Condemnation. 
EMPLOYEE: 

of  lessee,  owner  not  liable  for  explosion,   385. 
See  Employer. 
EMPLOYER'S: 

interest  in  employees'  services  when  insufficiency  for  suit  in  equity,  446. 

(766) 


Index. 

(The  references  are  to  sections.) 

EMPLOYMENT: 

See  Business. 

ENACTMENT: 

See  Statute. 

ENGINES: 

See  Fire  Engine,  Locomotive,  Portable  Engine,  Steam  Engines. 

ENGLAND : 

Nuisance  Removal  Act  includes  what,  4. 
rule  in  as  to  right  to  construct  wharf,  66. 
rule  in  as  to  acts  authorized  by  parliament,  68. 
ENGLISH : 

local  authorities  entitled  to  remedy,  439. 
ENGLISH  LOCAL  GOVERNMENT  ACT,  AMENDMENT  ACT:     298. 
ENGLISH  PRESCRIPTION  ACT: 

Light   and   air,   36. 
ENGLISH  PUBLIC  HEALTH  ACT:     155,  307,  311,  note;  312,  397,  406. 

sufficiency  of  notice  to  abate  smoke  nuisance  under,  155. 
ENGLISH  RIVERS  POLLUTION  PREVENTION  ACT:  303. 
EQUITY: 

power  of  to  abate,  2,  note. 

power  of  to  restrain  nuisance,  6,  note. 

wrongful  invasion  of  legal  right  essential,  22. 

substantial  injury  necessary,  22. 

apprehended  danger  may  be  sufficient,  22. 

acts  of  several   persons  may  constitute  nuisance,  23. 

when  will  not  restrain  cultivation  of  land  in  usual  way,  33. 

both  injury  and  damage  to  warrant  injunction,  39. 

nominal   injury  does  not  warrant  injunction  except,  etc.,  39. 

relief  where  injury  continuous  and  recurring,  39. 

mandatory  injunction,  39. 

impairment  or  diminution  in  value  as  ground  for  relief,  40. 

motive  or  intent  in  filing  bill,  43. 

motive  or  intent  as  ground  for  relief,  43. 

when  pollution  of  stream  by  placer  mining  not  restrained,  277. 

relief  in   against   restoration  of  dam,   327. 

remedy  in,  statutes,  362. 

remedy  at  law   or   equity,   363. 

remedy  in,  indictment,  365-367. 

ball  park  when  not  ground  for  relief,  390. 

right  to  relief  in,  liquor  nuisance,  399-401. 

remedy  in,  as  to  dams,  407. 

relief  in  denied,  statutory  remedy  followed,  415,  note. 

danger  should  be  imminent  and  real   for  interposition,  415. 

right  should  be  clear,  415. 

injury  should  not  be  remote,  415, 

speculative   or    apprehended  injury,   415. 

(767) 


Index. 

(The  references  are  to  sections.) 

EQUITY— Continued. 

essentials  of  jurisdiction,  remedy  or   relief,  415,   416. 

multiplicity  of  suits,  415,  410. 

to  prevent  interminable  litigation,  415,  416. 

irreparable  injury,  415,  416. 

where  remedy  at  law  inadequate  relief  granted.  415,  416. 

will  not  interfere  where  damage  trifling  or  nominal,  416. 

court  no  power  to  inquire  as  to  manner  of  removal  where  right  to  relief 

clear,  416. 
strictness  of  rule  as  to  jurisdiction  relaxed  in  modern  times,  416. 
jurisdiction  of  not  an  original   jurisdiction,   416. 
relief,  where  mischief  irreparable,  instances,  4  Hi. 
relief  in  where  continuance  of,   injury   threatened,  416. 
will  sustain  bill  at  instance  of  private  individual   against    public   nuis- 
ance, 416. 
powers  of  court  exercised  sparingly  in  favor  of  private  individual,  public 

nuisance,  416. 
relief  where  multiplicity  of  actions,  instances,  416. 
relief  where  remedy  at  law  inadequate,  instances,  416. 
relief  in,  where  must  be  pressing  necessity  for,  416. 
relief  in  where  damages  difficult  to  compute,  416. 
prospective  or  threatened  nuisance,  apprehended   injury,   410,  420. 
has  jurisdiction  where  highway  obstructed,  424. 
will  not  interfere  unless  allegations  and  proof  show  substantial  grounds, 

425. 
remedy  at  law  inadequate,  relief  to  State.   437. 
State  or  public  entitled  to  remedy,  437. 
right  of  municipal  and  quasi  municipal  authorities  to  sue;  Ejiglish  local 

authorities,  439. 
jury  trial — Miller  case,  493. 

See  Injunction,  Remedies,  and  other  particular  subjects. 
ERECTOR: 

of  nuisance,   liability   of   and  of   subsequent   holders   by   purchase   or  de- 
scent, 454,  455. 

See  Grantee. 
of  nuisance — notice  or  request  to  abate.  455-458. 
ESTOPPEL: 

locating  near  existing  nuisance,  49. 
in  pais  to  abate  canals  and  irrigation  ditches,  307. 
laches;  failure  to  complain,  485. 
EVIDENCE: 

what  must  be  shown  to  make  out  ease  of  special   injury  to  property,  2, 

note, 
proof  of  damages  impairment  of  value  of  property,  2,  note. 
of  consequential  damage  after  period  specified,   17. 
injury  need  not  be  proven  both  to  property  itself  and  its  enjoyment,  26. 

(768) 


Index. 

(The  references  are  to  sections.) 

EVIDENCE— Continued. 

when  inadmissible  to  enhance  damages,  offensive  odors,  40. 

burden  of  showing  prescriptive  right,  :>.">. 

upon  question  of  whether  a  trade  or  business  a  nuisance,  86. 

one  alleging  business  of  undertaker  a  nuisance  has  burden  of  proof,   134. 

in  action  for  nuisance  caused  by  smoke,  135. 

in  actions  for  noisome  smells,  157. 

of  reputation  of  animal  for  viciousness,   192. 

burden  on  complainant  to  show  livery  stable  a  nuisance,  200. 

on  question  of  stables  as  a  nuisance,  207. 

showing   use   of   highway   by    railroad   was   authorized    by    municipality, 

242,  note, 
upon  question  of  damages  for  nuisance  in  highway,  259. 
expert  or  scientific  evidence  as  to  pollution  of  water  and  effect  thereof, 

299,  309. 
dams;  overflow  and  flooding,  323. 
to  warrant  injunction  for  gaming  house,   395,  note. 

burden  of  proof  of  breach  of  city  order  as  to  use  of  steam  engines,  398. 
necessary  to  convict  for  liquor  nuisance,  401. 
character  of  for  equitable  relief,  415. 

proof  of  title  not  necessitated  by  allegation  of  ownership,  444,  note, 
information    against    corporation;    corporate    existence    must    be    shown, 
450,  note. 
EXCAVATIONS: 

whore  authorized  in  street;  liability  for  negligence,  78. 

noises  and  vibrations  in  making  for  electric  light  plant,   185. 

where  necessary  may  be  made  in  highway,  230. 

injury  to  rental  value  by,  230. 

where  permit  required  and  none  obtained,  230. 

what  are  necessary  ones  in  highway,  230. 

on  property  abutting  on  highway  and  close  to  it  a  nuisance,  230. 

though  cover  provided  and  destroyed  by  wrongdoer,  party  making  liable 

for  injury,  230. 
permit  for  usually  required,  230. 
duty  to  public  in  making,  230. 

duty  to  restore  highway  after  making  excavation,  230. 
in  highways,  230,  231,  232. 
under  sidewalks,  231. 

effect  of  license  to  make,  in  sidewalk,  232. 
EXCREMENT: 

deposit  of  by  horses  at  hitching  posts,  79. 

See  Manure. 
EXEMPLARY    DAMAGES,    503. 
pollution  of  water,  329. 

(769) 


Index. 

(The  references  are  to  sections.) 

EXHIBITIONS  AND  PLAYHOUSES: 

when  exhibition  not  a  nuisance  by  reason  of  collection  of  cabs,  115. 

playhouses  not  a  nuisance  in  their  nature,  115. 

indecent  pantomime,  indictment,  414. 

stud  horse  in  street,  indecent,  414. 

See  Fair. 
EXPERT  EVIDENCE: 

See  Evidence. 
EXPLOSION : 

negligence,  383. 

negligence  as  factor,  385,  note. 

property  injured  need  not  have  been  adjacent,  385,  and  note. 

of   nitro  glycerine,   386. 

while  gunpowder  in   consignee's  hands,  386,  note. 

of  steam  boiler,  398. 

of  nitro  glycerine,  409. 

of  fire  works   during  political   campaign,   city   not  liable,   448. 
EXPLOSIVES: 

must  store  with  regard  to  safety  of  others  in  prosecution  of  authorized 
work,  74. 

permitting  car  loaded  with  to  remain  on  highway,  258. 

dangerous  nuisances,  383,  384. 
EXPRESS  COMPANY: 

may  be  liable  for  liquor  nuisance,  399. 

FACTORY: 

asphalt  factory,  fumes  from,  9,  note. 

sewerage  from  glucose  factory  in  si  roam,  303. 

evidence  upon  question  of  whether  a  nuisance,  86. 

See  Manufactory,  Trade  or  Business. 
FACTORY  BELLS: 

where  ringing  of  authorized  by  legislature,  71. 

ringing  of  as  nuisance,    179. 
FACTORY  WHISTLES: 

not  a  nuisance  per  se,  180. 

when  a  nuisance,  180. 
FACTS: 

scientific  conclusions  of   secondary  importance  to  facts,  22. 
FAIR: 

structure  on  street  for  a  nuisance,  215. 

use  of  highway  for  purposes  of,  258. 
FANCIFUL: 

See  Nature  and  Character. 
FARO: 

gaming  house  is  nuisance,  395. 

(770) 


Index. 

(The  references  are  to  sections.) 
FASTIDIOUS  TASTE: 

See  Nature  and  Character. 
FAT  AND  BONE  BOILING  ESTABLISHMENTS: 

wherg  maintained  in  city  in  violation  of  penal  statute,  116. 
fact  that  city  refuse  is  disposed  no  defense,  116. 
what  bill  for  injunction  must  state,  116. 
noisome  smells   and  gases   from,   116. 
noisome  smells  from,  158. 
FEEDER   DAM: 

indictment,  407. 
FEED   LOTS,   409. 
FENCES: 

obstructing  neighbor's  light,  where  and  when  not  a  nuisance,  37. 

motive  or   intent  in  erecting,  43. 

as  a  purpresture,  61. 

where  declared  nuisance  by  statute,  83. 

enclosure  of  public  lands,  213. 

encroaching  on  highway,  239. 

encroaching  on  highway,  one  acting  as  agent  not  liable  for,  239. 

injury  to  horse  by  barb  wire  fence,  239. 

may  be  removed  from  highway  by  proper  auhorities,  239. 

obstructing   highway   a   public    nuisance,    239. 

power  of  municipality  to  remove  from  highway,  239. 

barb  wire  fence  by  railroad  track  not  a   nuisance  per  se,  239,  note. 

form  of  judgment  forbidding  encroachment  by,  on  highway,  i239,  note. 

on  common  landing  a  nuisance,  239,  note. 

across   private  way  may  be  public  nuisance,  239,   note. 

encroaching  on  highway,  action  by  individual  for,  240. 

party  maintaining  in  highway,  cannot  ask  injunction  against  another  for 

so  maintaining  fence,  240,  note, 
application  of  statute  imposing  penalty  for  obstruction  or  encroachment 

on  highway,  241. 
ordinance  as  to  barbed  wire  fences  construed,  339. 
when  municipality  cannot  justify  removal  of,  346. 
statute  as  to  removal  of  by  commissioners  of  highways,  379. 
and  structures  generally,  403,  404. 
FERRY: 

where  interference  with  a  nuisance,   117. 
obstruction  of  road  leading  to,  special  injury,  220. 
FERTILIZER  FACTORIES: 

in  populous  farming  district  may  be  perpetually  enjoined,  118. 

when  injunction  will  not  be  granted,  118. 

when  acts  and  conversations  will  not  deprive  party  of  his   right,   118. 

injury  to  crops  and  trees  from,  118. 

nuisances,  per  fc,  118. 

noisome   smells   from,    158. 

(771) 


IS  HEX.. 

(The  references  are  to  sections.) 

FERTILIZER  FACTORIES— Continued. 

though  business  lawful,  smells  from  a  nuisance,  161. 

smells  from  need  not  injure  health  to  be  a  nuisance,  166. 
FILTH: 

from   sewers  causing  sickness,  etc.,  283. 

deposited  on  land,  396. 
FINE,  :;62. 

FIRE: 

inflammable  substances,  388. 
danger  to  oil  and  gasoline,  388. 
FIRE  ENGINE: 

not  nuisance  per  se,  256. 
FIRE  LIMITS: 

power  of  municipality  as  to  establishment  of,  342,  343,  344. 
FIRE  ROCKETS: 

discharge  of  on  street  a  nuisance,  258. 
FIREWORKS: 

effect  of  permit  by  city  to  use  street  for  display  of,  353. 
where  discharge  of  authorized  by  municipality,  258,  note, 
liability  of  city  to  person  injured  by  discharge  of,  258,  note. 
as  public  nuisance,  385. 

exploding  during  political  campaign,  city  not  liable,  448. 
FISH: 

injury  to  by  pollution  of  water,  4,  note, 
injury  to  by  pollution  river,  4,  note, 
destroyed  by  pollution  of  waters,  277. 
dam  obstructing  passage  of,  407. 

waters  inhabitable  by,  no  defense  for  pollution,  482. 

See   Waters. 
FISHERY : 

right  of,   when   injury   to   a   nuisance,   276. 
FISH  FACTORY: 

smells  from,  5,  note. 
FISHING: 

See  Fishery,   Waters. 
FISHING  NETS: 

destruction  of,  where  set  in  violation  of  statute,  372. 
FLAG  POLKS: 

erection  of,  in  highways,  254. 
FLASH  BOARDS: 

whether  part  of  dam,  324. 
FLOATABLE  STREAM: 
obstructed,  2,  note, 
obstruction  of,   5,  note, 
common  nuisance,  6,  note, 
obstruction  of,  9,  note. 

(772) 


Index. 

(The  references  are  to  sections.) 

FLOATING  ELEVATOR: 

a  nuisance,  273. 
FLOATING   STOREHOUSE: 

a  nuisance,  273. 
FLOODING  LAND: 

continuing  nuisance,  11,  note. 

by  mill  dam,  no  prescriptive  right  to,  50. 

Injunction,  410. 

See  Waters. 

FLOURING  MILL: 

avoiding  nuisance  from,  187. 
FLUME : 

town,  when  not  liable  for  water  breaking  through,  277. 

FORGE: 

of  smith's  forge,  action  on  case,  34. 
FOUNDRIES : 

where  injurious  effects  may  be  avoided,  119. 
proposed  foundry  will  not  be  enjoined,  119. 
brass  foundry  and  machinery  not  prima  facie  nuisances,  119. 
FOWLS: 

hen  houses  not  nuisances,  411. 
noisome  smells,  hens,  163. 
FRANCHISE: 

grant  of,  gives  no  right  to  unnecessarily  inflict  damage,  73. 
FREIGHT  DEPOT: 

interfering  with  travel,  234. 
FRUIT   STAND: 

on  sidewalk,  a  nuisance,  258. 
on  city  street,  remedy,  414. 
FUMES: 

from  asphalt  factory,  9,  note. 

See  Smells,  Smoke,  Fumes  and  Gases,  Stenches. 

FUSE: 

gunpowder  used  to  manufacture  fuse,  384. 

GAMBLING: 

house,  a  nuisance,  395. 

statute  not  invalid  which  gives  private  action,  426. 

room,  civil  action  by  district  attorney,  437. 

legislature  may  designate  who  may  sue,  426. 
GARAGE : 

at  summer  resort,  not  a  nuisance,  411. 
GARBAGE: 

liability  of  municipality  for  smells  from,  166. 

measure  of  damages  for  odors  from,  170. 

liability  of  municipality  for  deposit  of,  in  street,  264. 

(773) 


Index. 

(The  references  are  to  sections.) 

GARBAGE— Continued. 

deposited  in  lake  causing  injury  to  fishing  nets,  276. 

liability  of  municipality  for  deposit  of,  353. 

muncipal  liability  for  dumping  of,   355. 

deposited  on  land,  346. 

crematory,  when  not  enjoined,  411. 
GARBAGE  PLANT: 

noisome  smells  from,  158. 

GAS: 

sulphuretted  hydrogen  gas  from  sewers,  45. 

GASES: 

noxious,  injury  substantial  and  not  trifling,  22. 
and  vapors  injuring  ornamental  property,  26. 
emitted  from  manholes   in    sewers,   230. 
from   refuse  from   creamery,  303. 

escaping  through  sewer  manholes,  caused  by  oil  percolations,  387. 
See  Noxious  Smells,  Sewerage,  Smoke,  Fumes  and  Gases. 
GASOLINE: 

in  tanks,  not  nuisance  per  sc,  387. 
dangerous  nuisances,  387,  388. 
GAS  PIPES: 

use  of  highway  for,  258. 
GAS  PLANT: 

when  no  prescriptive  right  acquired  to  emit  noxious  gases  from,  o7. 
authorized  by  State,  company   not  Liable  to  indictment.  67. 
liability  of,  for  nuisance,  71. 
where  location  of  not  designated  by  Btatute,  76. 
noises,  smells  and  vibrations  from,  176. 
GAS  WELLS: 

location  of;    whether  nuisances,   409. 
GAS  WORKS: 

injunction  refused  where  injury  transient  and  trivial.  21. 
erection  of,  will  not  be  enjoined,  120. 
charter  from  State  does  not  relieve  from  liability.  120. 
where  special  injury  action  may  be  maintained,  120. 
pollution  of  waters,   303. 
GATES: 

at  railroad  crossing,  258. 
GEORGIA: 

statute  does  not  change  common  law  definition  nuisance,  4,  note, 
code;  definition  public  nuisance,  7,  note, 
code  definition,  10,  note. 
GERMS: 

See  Disease. 

GLANDERS: 

bringing  horse  infected  with,  into  public  place,  193. 

(774) 


Index. 

(The  references  are  to  sections.) 

GLASS  FACTORY: 

where  adjacent  to  hotel,  a  nuisance,  96. 
GLUCOSE  FACTORY: 

sewerage  from,  in  stream,  303. 
GOLD  AND  SILVER  BEATER: 
noises  from  business  of,  176. 
GOLDEN  GATE  PARK: 

railroad  in  a  purpresture,  61. 
GOODS: 

loading  and  unloading.  223,  224,  225,  226. 
exposure  of,  for  sale  on  sidewalk,  227. 
loading  and  unloading  of. 

See  Highway. 
GOVERNMENTAL  CAPACITY  of  Municipality,  etc.,  279. 
See  Legalized  Nuisances,  Municipality. 
GRADE. 

change  of,  under  proper  authority  not  a  nuisance,  264,  note, 
change  of,  not  a  nuisance  by  reason  of  constitutional  provision  allowing 
compensation,  264,  note. 
GRADE  CROSSINGS,  2,  note. 
GRADIN* ; : 

of  highway  so  as  to  obstruct  passage,  258. 
GRAIN  THRESHING  MACHINE: 

dust  and  chaff  from,  143. 
GRANDCHILDREN  : 

specially  injured  by  obstruction  of  access  to  burial  lot,  424. 
GRANTEE: 

of  land  subject  to  nuisance  has  remedy,  443. 
of  erector  of  nuisance;   notice  to  abate,  456-458. 
GRANTOR: 

non-liability  for  sewer  nuisance,  280. 
GRIST  MILL: 

evidence  showing  nuisance  by,  86. 
GROGSHOP: 

which  is  disorderly  resort;   private  action,  436. 
See  Liquor  Nuisance. 
GUNPOWDER: 

storing  of,  common  nuisance,  6,  note, 
storage  of;   private  nuisasce,  9,  note, 
keeping,  9,  note, 
negligence,  383. 
dangerous  nuisances,  384. 

exploding  while  in  consignee's  hands,  386,  note. 
GUNS: 

See  Spring  Guns. 


(775) 


I^DEX. 

(The  references  are  to  sections.) 

GUTTER: 

nuisance;  removal  act  includes,  4. 

HABEAS  CORPUS: 

obstruction  of  street,  4,  note. 
HABITATION: 

See  Dwelling. 
HAMMER: 

vibrations  from,  where  operated  by  steam,  188. 
HANDBILLS: 

municipality  may  prevent  distribution  of,  263. 
HATCHWAY : 

leading  to  a  cellar  not  a  nuisance  per  se,  231. 
HAWKINS' 

and  Blackstone's  definition  of  public  nuisance,  6. 
HEALTH: 

as  element  of  definition  of  nuisance,  2,  4,  5. 

injured  by  gases  or  noisome  smells  is  a  nuisance,  2,  note. 

endangered  a  nuisance  exists,  19. 

act  injurious  to,  under  statute,  20. 

state  of,  causing  peculiar  susceptibility  to  noise,  etc.,  20. 

state  of,  as  determining  existence  of  nuisance,  20. 

municipality  cannot  authorize  nuisance  impairing,  80. 

need  not  be  endangered  to  render  trade  or  business  a  nuisance,  87. 

need  not  be  endangered  to  render  slaughter  house  a  nuisance,   129. 

smoke  to  be  nuisance  need  not  be  injurious  to,  138. 

injury  to,  by  smoke  from  brick  kiln.  145. 

smells  a  nuisance  though  not  injurious  to,   166. 

noise  a  nuisance  though  not  injurious  to,  174. 

injury  to,  by  blowing  steam  whistles,  180. 

injury  to,  by  cattle  enclosures,  208. 

endangered  by  mill  pond,  305. 

powers  of  board  of  health  as  to  nuisance  affecting,  331. 

municipality  obligated  to  remove  nuisances  which  endanger,  345. 

destruction  of  building  to  prevent  spread  of  contagious  diseases,  350,  note. 

injured;   private  action,   public  nuisance,   436. 

See  Statute. 
HEALTH  COMMISSIONER: 

service  of  notice  by,  not  sufficiently  shown,  455,  note. 
HEARING: 

things   offensive   to,  as  public   nuisance,   5,   note. 
HEIRS: 

specially  injured  by  obstruction  of  access  to  burial  lot,  424. 
HEN  HOUSES: 

not  a  nuisance,  411. 


(776) 


Index. 

(The  references  are  to  sections.) 

HENS: 

noisome  smells  from  keeping  of,  163. 

HIGHWAY: 

obstructing  market  house,  2,  note. 

grade  crossings,  2,  note. 

obstruction  of;  habeas  corpus,  4,  note. 

obstruction  of,  4,  note. 

obstruction  of,  is  public  nuisance,  4,  note. 

obstruction  of,  common  nuisance,  6,  note. 

as  factor  in  public  nuisance,  7. 

obstruction  of,  a  nuisance  per  sc,  12. 

injunction  refused  to  restrain  laying  gas  pipes,  21. 

abutting  owner's  easement  of   light  and  air,  36. 

rights  of  public  in,  52. 

no  prescriptive  right  to  maintain  nuisance  in,  52. 

dam  a  nuisance  by  overflowing,  52. 

collection  of  wagons  in,  as  a  nuisance,  52. 

purpresture  on,  61. 

authorized  use  of,  by  individual  not  a  public  nuisance,  70. 

power  of  legislature  to  authorize  obstructions  in,  70. 

street  railways  in,  not  a  nuisance  where  authorized,  70. 

alteration  of,  by   railroad  company,   75. 

duty  of  railroad  company  to  restore,  75. 

permitting  diseased  animals  at  large  upon,  193. 

horse  or  colt  at  large  on,  a  nuisance,  194. 

injury  to  child  by  colt  at  large  upon,  194. 

animals  at  large  on,  a  nuisance,  194. 

use  of  automobiles  upon,  212,  note. 

use  of,  new  methods  of  passage,  212. 

where  no  restriction  on  use,  212. 

rights  of  public  in,  generally,  212. 

primary  purpose  of,  212. 

not  limited  in  use  to  mere  purposes  of  travel,  212. 

dedicated  with  regard  to  necessities  of  future  times,  212. 

neglect  of  a  statutory  duty  may  be  a  nuisance,  214. 

neglect  to  keep  bridge  in  repair,   214. 

must  be  safe,  free  and  convenient,  214. 

what  constitutes  a  public  nuisance  on,  214. 

encroachment  need  not  obstruct  travel  to  be  a  nuisance,  214. 

encroachments  and  nuisances  on,  in  general,  214. 

words  "  permanent  obstruction  "  construed,  215. 

structure  for  fair  encroaching  on,  a  nuisance,  215. 

that  not  lawfullv  established  no  defense  for  obstructing,  216. 

power  of   municipal    authorities  to  abate  a  nuisance  on,  where  not  in 

use,  216. 
where  not  lawfully  established,  216. 

(Y77) 


Index. 

(The  references  are  to  sections.) 

HIGHWAY— Continued. 

where  differing  from  plans,  216. 

encroachment  on  part  not  completed  a  nuisance,  216. 

that  less  than  statutory  width  no  defense  for  obstructing,  216. 

no  defense  for  obstructing  that  highway  differs  from  plans,  216. 

where  not  completed,  216. 

individual   liable   for   nuisance  on,   though  another   under   legal   duty  to 

remove,  217. 
spreading  salt  on  car  tracks  a  nuisance,.  217. 
that  no  injury  anticipated  from  obstruction  immaterial,  217. 
liability  of  individual  creating  nuisance  on,  217. 

town  may  recover  for  special  damage  from  nuisance  affecting,  218,  note, 
right  of  tenant  of  premises  to  recover  for  nuisance  affecting  highway.  218. 

note, 
right  of   individual  to   recover  for   demand   to   abate   not  necessary,   218, 

note, 
erection  of  platform  scale  in,  218,  note, 
what  complaint  must  show  in  action  by  individual  for  nuisance  affecting, 

218,  note, 
to  entitle  individual  to  injunction  special  injury   necessary,  218,  219. 
individual  must  allege,  and  prove  Borne  special  damage,  218,  219. 
to  entitle  individual  to  sue  must  suffer  special  injury,  218,  219. 
sufficiency  of  pleading  in  action  by  individual  for  obstructing,  219. 
consequential  injury  to  individual   sufficienl   to  give  right  of  action,  219. 
extent  of  injury  suffered  by  individual  not  important.  219. 
special  injury  as  affected  by  ownership  of  soil  of,  219. 
what  constitutes  special  damage  to  individual,  219. 
mere  nominal  injury  to  individual  gives  no  right  of  action.  219. 
mandamus  to  compel  restoration  of,  by  railroad.  219. 
mandamus  to  compel  removal  of  obstruction  in,  219. 
injury  to  access  and  egress  by   Hooding  highway,  220. 
horses  and  wagons  standing  causing  special   injury  to  individual,  220. 
obstruction  by  storekeeper  causing  special    injury   to    individual.  220. 
special  injury  to  individual   by  overflowing,  220. 
special  injury  to  individual  from  unsafe  bridge.  220. 
obstruction  of  road  leading  to  ferry;    special  injury.  220. 
instances  of  special  injury  by  individual,  220.  221. 
nuisance  affecting  hotel,  221. 
obstruction  requiring  taking  of  more  circuitous   route  as   special   injury, 

221. 
more  frequent  inconvenience  as  a  special  injury.  221. 
injury  to  access  and  egress,  222. 

to  give  remedy  to  individual  all  access  need  not  be  cut  off.  222. 
individual  has  right  of  access  to  his  property,  222. 

though  municipality  owns  fee  of,  abutter  has  remedy  for  injury  to  ac- 
cess, 222. 

(778) 


Index. 

(The  references  are  to  sections.) 

HIGHWAY— Continued. 

obstruction  to  access  need  not  be  continuous  and  uninterrupted  to  give 
remedy  to  individual,  222. 

loading  and  unloading  of  goods,  223. 

special   injury  to  individual  by  loading  and  unloading  of  goods,  223. 

use  of,  for   loading  and  unloading  goods  must  be  reasonable  and   neces- 
sary,  223. 

abutting  owner  or  occupant   has   right  of  loading  and   unloading  goods, 
223. 

loading  and  unloading  of  goods,  223,  224,  225,  22li. 
•   loading  and  unloading  goods  may  be  nuisance  though  use  necessary,  224. 

loading  and  unloading  goods  may  be  nuisance  though  business  lawful,  224. 

loading  and  unloading  goods;   what  not  a  reasonable  use,  225. 

abutter  can  not  store  property  in  street,  225. 

use  of  skids  or  platforms  for  loading  or  unloading  goods,  226. 

placing  of  show  cases  in,  227. 

storing  of  goods  in,  227. 

exposure  of  goods  and  wares  for  sale,  227. 

storage  of  slabs  in,  227. 

liability  of  municipality  for  injury  to  individual  by  falling  show  case,  227. 

New  York  city  no  power  to  permit  storing  of  wagon  in,  227,  note. 

market  place  in  city  street,  228. 

market  in,  city  proper  defendant,  228,  note. 

access  to  premises  impeded  by  market,  228,  note. 

liability    of    municipality    where    use    of    street    for    building    materials 
licensed,  229. 

deposit  of  building  materials  and  earth  in,  229. 

use  of,  for  building  materials  must  be  reasonable,  229. 

common   council    may   authorize    obstruction    of   street   by   building   ma- 
terials, 229,  not*. 

excavation  on  abutting  property  close  to  highway  a  nuisance,  230. 

liable   for   injury  caused   by   excavation   though   cover    provided   and   de- 
stroyed by  wrongdoer,  230. 

what  are  necessary  excavations,  230. 

where  permit  for  excavations  required  and  none  obtained,  230. 

permit  for  excavations  in,  usually  required,  230. 

necessary  excavations  may  be  made,  230. 

duty  to  restore  highway  after  making  excavation,  230. 

duty  to  public  in  making  excavations,  230. 

injury  to  rental  value  by  excavations  in,  230. 

excavations,  230,  231,  232. 

vaults  and  excavations  under  sidewalk,  231. 

openings  in  sidewalk,  231. 

opening  in  walk  for  light  and  ventilation  not  a  nuisance,  231. 

coal  holes  in  sidewalk  a  nuisance  in  Xew  Y'ork,  231. 

coal  holes  in  sidewalk,  231. 

(779) 


Index. 

(The  references  are  to  sections.) 

HIGHWAY— Continued. 

coal  holes  in,  if  properly  constructed  and  covered  not  a  nuisance,  231. 

hatchway  leading  to  a  cellar  not  a  nuisance  per  se,  231. 

duty  of  person  maintaining  vaults  and  excavations  in  sidewalk,  231. 

effect  of  license  for  vaults  and  excavations  in  sidewalk,  232. 

person  no  right  to  encroach  upon,  with  building,  233. 

municipality   can   not   authorize  encroachment    upon    street   of   building, 

233. 
barn  close  to,  a  nuisance,  233. 
platform  from  second  story  of  a  building  for  loading  merchandise  not  a 

nuisance  per  se,  233. 
bow  window  projecting  over  building  line,   233. 
steps  of  a  building  a  nuisance,  233. 
buildings  encroaching  on,  233. 

New  York  city  authorities  can  not  permit  encroachments  upon,  233,  note, 
obstruction  by  encroachment  of  adjoining  building  of  air  and  view,  234. 
injury  to  boarding  house  by  freight  depot  interfering  with  travel,  234. 
unauthorized  erection  by  municipality  of  buildings  in.  234. 
access  of  abutting  owner  injured  by  encroaching  building,  234. 
special  injury  to  individuals  from  building  encroaching  on,  2:J4. 
obstruction  of  light  by  encroachment  of  adjoining  building,  234. 
steps  encroaching  on,  when  individual  no  right  to  damages,  234. 
right  to  temporary  and  mandatory  injunction  where  building  encroaches 

on  highway,  235. 
structure  obstructing  light  and  air  of  adjoining  owner,  236. 
overhanging  eaves,  237. 
ice  and  snow  from  roofs  falling  into,  237. 
pipe  conductors  causing  ice  to  form,  237. 
pipe  conductors,  237. 
building  liable  to  fall  into,  238. 

board  of  health  may  remove  building  liable  to  fall,  238,  note, 
fence  which  obstructs,  is  public  nuisance,  239. 
injury  to  horse  by  barb  wire  fence  encroaching  on,  239. 
power  of  municipality  to  remove  fences  from,  239. 
one  acting  as  agent  not  liable  for  fence  encroaching  on,  239. 
fences  encroaching  on,  239. 

form  of  judgment  forbidding  encroachment  by  fence,  239,  note, 
action  by  individual  for  fence  encroaching  on  highway,  240. 
statutory  penalty  for  encroachment  or  obstruction;  fences,  241. 
duty  in  use  of  streets  for  railroads,  242. 

departure  in  detail  in  construction  of  street  railway,  242,  note, 
evidence  showing  railroad  in,  was  outhorized,  242,  note, 
operating  street  car  line  by  cable  under  authority  to  operate  by  horses 

242,  note. 

where  tracks  not  laid  in  center  of,  as  authorized,  242,  note, 
legalized  use  of  highway  by  railroad,  242,  243,  244. 

(780) 


Index. 

(The  references  are  to  sections.) 

HIGHWAY— Continued. 

duty  in  construction  of  railroad  in  streets,  243. 

construction  of  New  York  city  subway,  244. 

unauthorized  railroads  in,  individual  specially  injured  may  sue,  246. 

railroads  in,  a  public  nuisance  where  unauthorized,  246. 

unauthorized  construction  of  railroads  in,  246. 

horse  railroad  track  in,  246,  note. 

municipality    may    remove    where    constructed    without    authority,    246, 

note, 
side  tracks  and  switches  in,  247. 
elevated  railroad  switch  in,  247,  note, 
unreasonable  use  of  highway  by  railroad,  248. 
rights  of  public  where  railroad  crosses  street,  248. 
cars  standing  at  crossings  or  in  streets,  248. 
use  of,  for  switching  cars,  248. 

where  penalty  by  statute  for  car  standing  at  crossing,  248,  note, 
use  of,  for  loading  and  unloading  cars,  249. 
use  of,  for  terminal  purposes  of  railroad,  249. 
railroad  abutments  and  bridges  in,  250. 
effect    of    authority   to   highway    commissioners    to    permit   extension    of 

tracks  in,  250,  note, 
railroad  in,  under  lawful  authority  not  a  nuisance,  250,  note, 
use  of  salt  on  street  railway  tracks,  251. 

accumulation  of  snow  cleared  from  street   railway  tracks,  251. 
trees   in,  not  necessarily  a  nuisance,  252. 

trees  in,  may  become  a.  nuisance  by  development  of  locality,  252. 
right  of  municipality  to  remove  trees  in,  252. 
trees  in,  as  a  nuisance,  252. 

unauthorized  grant  by  city  of  right  to  obstruct,  353. 
effect  of  permit  by  city  to  use  for  firework  display,  353. 
right  of  municipality  to  destroy  trees  in,  253. 
erection  of  Hag  poles  in,  254. 

right  to  obstruct  not  limited  to  cases  of  strict  necessity,  254,  note, 
obstruction  of,  by  exhibition   of  wild  animals,   255. 
horses   frightened   by   implements   used   in    unloading  freight   from   cars, 

255. 
sliding  on,  may  be  a  nuisance,  255. 

liability  of  abutting  owner  where  objects  frighten  horse,  255. 
liability  of  municipality  where  objects  in  highway  frighten  horses,  255. 
objects  frightening  horses,  255,  256. 
portable  engine  near,  not  necessarily  a  nuisance,  256. 
rule  as  to  objects  frightening  horses  does  not  apply  to  all  horses,  256. 
persons  with  horses  do  not  possess  rights  superior  to  those  traveling  by 

other  means,  256. 
liability  of  municipality  for  failure  to  exercise  powers  as  to,  357. 
tollgate  a  nuisance  if  no  lawful  authority  for,  257. 

(781) 


I^DEX. 

(The  references  are  to  sections) 

HIGHWAY— Continued. 

use  of,  for  purposes  of  a  fair,  258. 

gates  at  a  railroad  crossing,  258. 

use  of,  for  gas  pipes,  258. 

telephone,  telegraph  or  electric  light  poles,  258. 

use  of  abusive  language  on,  258. 

coasting  endangering  saftey  of  travelers,  258. 

electric  light  wires  not  properly  insulated,  258. 

awnings  in  violation  of  ordinance,  258. 

making  of  speech  not  a  nuisance  per  se,  258. 

discharge  of  fire  rockets  on  street,  258. 

construction  of  water  box  in,  258. 

fruit  stand  on  sidewalk,  258. 

scaffolding  overhanging  sidewalk,  258. 

permitting  car  with  explosives  to  remain  on,  258. 

grading  of,  so  as  to  obstruct  passage  258. 

particular  obstructions,  acts  or  things  as  nuisances,  258. 

logs  piled  in,  a  nuisance,  258. 

bill  board  on  sidewalk  a  nuisance,  258. 

hitching  rack  not  nuisance  per  se,  258. 

telephone  poles  a  nuisance  at  common  law,  258,  note. 

license  to  erect  awning  may  be  revoked,  258,  note. 

measure  of  damages  for  a  nuisance  not  permanent,  259. 

damages  for  nuisances  in,  259. 

damages  for  unlawful  operation  of  railroads  in.  259. 

measure  of  damages  for  nuisance  wbich  is  permanent,  259. 

punitive  damages  for  willful  obstruction  of.  259. 

evidence  upon  question  of  damages  for  nuisance  in  highway.  2.">9. 

damages  not  limited  to  nominal  for  nuisance  by  railroad  in  highway.  259, 

note, 
power  of  mupnicipality  to  authorize  obstructions  or  nuisances,  2G0,  2G1. 
buildings  on  opposite  sides;   municipality  can  not  authorize  construction 

of  by  structure  over  street,  261. 
when  municipality  may  authorize  poles  and  wires  in,  261. 
municipality  can  not  legalize  construction  of  railroad  in  highway,  261. 
municipality  can  not  prohibit  halting  of  persons  on  street  for  a  reason- 
able time,  262. 
municipality  no  power  to  prevent  convicts  working  on,  2i;J. 
municipal  authority  to  declare  things  in  a  nuisance,  262,  2(1:). 
municipality  may  prevent  distribution   of  advertisements,  263. 
municipality  may  prohibit  erection  of  hitching  p>r-ts  in  streets,  263. 
right  of  municipality  to  prohibit  use  of  locomotives  in  streets,  263. 
municipality  may  prohibit  erection  of  hitching  posts,  263. 
liability  of  municipality  for  defects  in.  264. 
liability  of  municipality  for  changing  grade  of,  264. 
municipal  liability  for  nuisances  in,  264. 

(782) 


Index. 

(The  references  are  to  sections.) 

HIGHWAY— Continued. 

liability  of  municipality  for  deposit  of  garbage  in,  264. 

where  municipality  fails  to  perform  duty  to  keep  streets  free  from  nui- 
sances, 204. 

whether  object  a  "defect"  within  statute  question  for  jury,  264,  note. 

as  to  notice  to  remove  encroachments,  264,  note. 

change  of  grade  under  proper  authority  not  a  nuisance,  264,  note. 

change  of  grade  not  a   nuisance  by  reason  of   provision   of  constitution 
allowing  compensation,  264,  note. 

right  of  individual  to  abate  nuisance  in  highway  where  attempt  resisted, 
369. 

navigable  river  is  public  highway,  272. 

gases  emitted  from  manholes  in  sewers,  280. 

explosives  stored  or  used  near  to,  384. 

obstruction  of,  indictment  or  information,  414. 

stone  columns  projecting  into  in  front  of  building,  424. 

obstructed,  equity  has  jurisdiction,  424. 

private  action,  public  nuisance,  431. 

taking  tolls  from;   injunction  lies  by  prosecuting  officer,  438. 

for  injury  to,  town  may  sue,  439. 

obstruction  of;    action  to  abate,  439,  note. 

See  Navigable  Waters,  Streets,  Wateks. 
HITCHING  POSTS: 

where  erected  under  municipal  authority,  79. 

municipal  authority  may  prohibit  erection  of,  in  streets,  263. 
HITCHING  RACKS: 

erected  on  public  square,  79. 

in  highway  not  a  nuisance  per  se,  258. 
HOG  PENS: 

on  banks  of  stream;   pollution  of  waters,  311. 

contributing  in  part  to  nuisance;   remedy,  414. 
HOGS: 

See  Piggeries. 
HOME : 

See  Dwelling  House,  Residence,  2,  note. 
HORSE  RAILROAD: 

track  in  highway,  246,  note. 
HORSES: 

deposit  of  excrement  by,  at  hitching  posts,  79. 

bringing  into  public  place  when  affected  with  glanders,  193. 

where  diseased  and  permitted  to  water  at  tank  used  by  other  horses,  193. 

at  large  on  highway  a  nuisance,  194. 

and  wagon  standing  in  street  causing  special  injury  to  individual,  220. 

injury  to,  by  barb  wire  fence  encroaching  on  highway,  239. 

frightening  of,  by  implements  used  in  unloading  freight  from  cars,  255. 

liability  of  abutting  owner  where  objects  frighten  horses,  255. 

(783) 


Index. 

(The  references  are  to  sections.) 

HORSES— Continued. 

liability  of  municipality  where  frightened  by  objects  in  highway,  255. 
objects  in  highway  which  tend  to  frighten,  255,  256. 
fire  engine  not  a  nuisance  per  se  though  it  may  frighten  horses,  256. 
persons  with  horses  do  not  possess  rights  superior  to  those  traveling  by 

other  means,  256. 
threshing  machine  not  a  nuisance  though  it  may  frighten  horses,  256. 
rule  as  to  objects  frightening,  does  not  apply  to  all  horses,  256. 
HOSPITAL : 

liability  of  municipality  for  maintenance  of,  356. 
abandonment  of,  397,  note. 

See  Pest  House,  Small  Pox. 
HOTEL: 

nuisance  on   highway  affecting,  221. 
sewer  negligently  constructed,  283. 
HOUSE  OF  ILL  REPUTE: 

bawdy  house.  79,  350,  377.  391,  436. 
HOUSES: 

injury  to,  may  be  nuisance,  2,  note. 

kept  negligently  and  in  filthy  condition  a  nuisance,  44. 

See  Buildings,  Dwelling,  Dwelling  House,  Highways. 
HURT  AND  ANNOYANCE: 

not  necessarily  physical  injury,  9. 
HUSBAND 

and  wife;   tenants  by  entirety  need  not  join  in  suit,  445. 
HYDRAULIC   MINING: 

See  Mining. 
HYDROGEN  GAS: 

sulphuretted  gas  from  sewer:    negligence,  45. 

ICE: 

injury  to,  by  smoke  and  soot,  143. 

when  injunction  against  smoke  will  not  be  granted,  146. 

from  roofs  of  buildings  falling  into  highway,  237. 

upon  sidewalk  forming  from  pipe  conductors,  237. 

stream  for  harvesting  ice  polluted,  393. 
ICE  HOUSE: 

near  dwelling  of  a  person  a  nuisance,  121. 

befouled,  382. 
ICE  POND: 

destroyed  by  pollution  of  waters,  277. 
IDAHO: 

code;   definition  nuisance,  4,  note;   10,  note. 

code;  definition  public  nuisance,  7,  note. 
ILLEGAL  USE: 

of  property,  who  liable,  473. 

(784) 


Index. 

(The  references  are  to  sections.) 

ILL  FAME: 

house  of,  79,  391,  436. 

that  house  used  as,  no  ground  for  its  destruction,  350. 

use  of  house  for,  does  not  justify  its  destruction,  377. 
ILLINOIS : 

statute;  public  nuisances,   7,  note. 
IMMORAL  USE : 

of   property;   who  liable,  473. 
IMPROVEMENT  ACTS: 

English.     See  Statute. 
IMPROVEMENTS: 

of  property;   reasonable  right  to  make,  31. 
INCONVENIENCE: 

trifling,  21. 
INDECENT  CONDUCT: 

public  nuisance,  5,  note. 
INDECENT  EXPOSURE : 

indictment,   414. 
INDEPENDENT  CONTRACTOR,  472,  note. 
INDIANA: 

statute;  definition  niusance,  4,  note;  10,  note. 
INDICTABLE : 

when;   public  nuisance,  5,  note. 
INDICTMENT: 

against  bowling  alley,  2,  note. 

does  not  lie  when  only  few  inhabitants  of  particular  place  suffer,  5,  note. 

length  of  time  nuisance  maintained  no  defense  to,  50. 

for  maintaining  slaughter  house  no  defense  that  it  was  originally  remote 
from  habitations,  54. 

company  authorized  to  manufacture  gas  not  liable  to,  67. 

defense  to,  in  case  of  slaughter  house,   130. 

for  smoke  need  not  show  an  injury  to  health  to  support,  138. 

for  noisome  smells  caused  by  stagnant  water,  158. 

against  obstructing  fish  in  rivers,  276. 

dam  obstructing  fish,  276. 

against  canal  company  for  permitting  stagnant  water  in  pools,  305. 

of  canal  company;   pollution  of  water,  306. 

though  city  liable  to,  for  a  nuisance  may  still  be  liable  to  individual,  353. 

remedy  by  statute,  365-367. 

for  carrying  child  with  smallpox  on  street,  397. 

common  scold,  402. 

dams,  407. 

lies  for  public  nuisance,   413. 

or  information;   obstruction  of  navigable  waters,  414. 

or  information;   obstruction  of  public  highway,  414. 

or  information:   odors  from  acid  works,  414. 

(785) 


Index. 

(The  references  are  to  sections.) 

INDICTMENT— Continued. 

for  matter  offensive  to  senses  though  not  injurious  to  health,  414. 

pantomime  offending  common  decency,  414. 

when  lies  for  offensive  trade,  414. 

indecent  exposure,  414. 

exhibiting  stud  horse  in  street,  414. 

for  punishing  servant,  414. 

of  public  officials  for  neglect  to  abate  nuisance,  414. 

may  lie  though  act  punishable  by  statute,  414. 

Sunday  barbering,  414. 

butchering  business,  414. 

public  nuisance,  when  remedy  confined  to,  425. 

for  failure  to  repair  bridge,  449. 
INDIVIDUAL: 

right  of  to  pure  air,  13G.  k 

INFECTIOUS  DISEASES,  397. 
INFLAMMABLE  SUBSTANCES: 

ignition;   negligence,   388. 
INFORMATION: 

See  Indictment. 

INJUNCTION : 

against  mill  Jam,  4,   note. 

mandatory,  abatement  by,  4,  note. 

refused  where  injury  transienl  and  of  trivial  nature,  21. 

to  restrain  improving  property  injury  must  be  real,  22. 

acts  of  several  persons  may  constitute  nuisance,  23. 

general  nature  and  character  of  nuisance  as  affecting  24. 

nuisance,  occasional,  etc.,  24. 

no  estoppel  from  locating  near  existing  nuisance,  49. 

will  not  be  granted  proposed  business  where  it  is  lawful,  102. 

against  putting  certain  matter  in  streams,  273. 

lies  to  prevent  pollution  of  fishery    JTti. 

against  deposits  of  mining  debris,  277. 

pollution  of  stream  by  sewage,  278. 

against  board  of  water  commissioners,  278. 

lies  where  gases  emitted  from  manholes  in  sewers,  280. 

against  continuance  of  sewer  nuisance,  280. 

for  pollution  of  city  water  supply,  304. 

to  prevent  diversion  of  water;  prospective  injury,  306. 

against  cutting  ditch  which  would  pollute  waters  used  for  dyeing,  307. 

when  not  allowed  as  to  explosives,  384,  385. 

when  will  not  issue  against  powder  house,  385. 

when  lies  against  oil  wells,  388. 

lies  where  cemetery  sewer  pollutes  stream,  393. 

for  violation  of  statute  as  to  location  of  cemetery,  393. 

lies  against  deposits  of  filth,  etc.,  on  land,  396. 

(786) 


Index. 

(The  references  are  to  sections.) 

INJUNCTION— Continued. 

to  restrain  continuance  of  hospitals,  397. 

right  to,  in  liquor  nuisance,  399-401. 

not  against  erection  of  jail,  403. 

against  erection  of  fence,  404. 

to  prevent  erection  of  privy,  405,  406. 

dams,  407. 

sand  piles  near  residences,  409. 

feed  lots,  409. 

against  piano  used  in  saloon  at  night,  409. 

against  cigar  store  where  slot  machine  used,  409. 

against  prize  fight,  409. 

against  disorderly  theatre.  409. 

when  against  gas  wells,  409. 

explosion  of  nitroglycerine  in  gas  wells,  409. 

corruption  of  waters,  410. 

flooding  Lands,  410. 

a\  lien  lies  as  to  wharf,  410. 

statute  as  to  Sunday  labor,  411. 

not  against  railroad  terminal  yard,  411. 

when  none  lies;    weeds,  411. 

trees  along  boundary  line,  411. 

code  penalty   not  recoverable  by,  414,  note. 

to  prevent  irreparable  injury,  416. 

granted  where  nuisance  per  se,  416. 

denied  where  injury  doubtful  or  contingent,  416. 

perpetual  awarded  where  pollution  of  water  by  sewage,  416. 

to  prevent  interminable  litigation,  416. 

diversion  of  waters  which  runs  machinery,  416. 

not  awarded  for  infringement  of  doubtful  rights,  416. 

whether  establishment  at  law  of  right  a  prerequisite  to  equitable  relief, 

416,  417,  418. 
private  person,  public  nuisance,  425. 
statute  giving  remedy  by,  in   private  action  in  case  of  gambling  is   not 

invalid,  42(i. 
to  restrain  shooting  gallery  "  tonophone  "  and  "  orchestrion,"  426. 
legislature  may  designate  who  may  sue,  426. 
piers  in  navigable  waters;   private  suit,  433. 
lies  in  favor  of  board  of  health,  440. 

See  Equity,  and  other  particular  subjects. 
INJURY: 

what  must  be  shown  to  make  out  case  of  special  injury  to  property,  2, 

note, 
to  fish  by  pollution  of  water,  4,  note, 
mere  tendency  to,  insufficient,  19. 

(787) 


Index. 

(The  references  are  to  sections.) 

INJURY— Continued. 

must  not  be  theoretical,  20. 

must  not  be  fanciful  or  imaginative,  20. 

test  of,  judgment  of  ordinary  men,  20. 

inconvenience  or  discomfort  trifling,  21. 

must  not  be  merely  discoverable  by  scientific  or  microscopic  observation, 
22. 

must  be  substantial  not  trifling;   gases  or  vapors,  22. 

must  be  substantial  for  equitable  relief,  22. 

apprehended  may  be  sufficient  in  equity,  22. 

must  be  substantial,  tangible  and  appreciable,  22.  20. 

in  order  to  restrain  improving  property  injury  must  be  real,  22. 

question  of  degree,  22. 

acts  of  several   persons  may  constitute  nuisance.  23. 

may  arise  from  acts  of  several,  though  not  sufficient  if  done  by  one,  23. 

occasional,  24. 

temporary,  24. 

permanent,  24,  489,  494,  495,  496. 

continuing,  24,  211,  415,  410,  454-460,  404,  495,  596. 

visible,  actual  and  substantial,  26. 

person  has  a  right   to  have  property  protected,  26. 

need  not  be  proven  both  to  property  itself  and  its  enjoyment,  26. 

sic  utere  tuo  ut  alienum  non  laedes,  27. 

may  be  sustained,  damnum  absque  injuria,  32. 

extent  and  character  of,  generally,  39. 

continuous  and  recurring  relief  in  equity,  39. 

law  knows  no  distinction  of  classes,  42. 

prevention  of,  by  plaintiff;   contributory  negligence,  45,  46. 

by  casting  offensive  matter  in  pond;   when  qoI   permanent,  305. 

should  not  be  remote,  415. 

should  not  be  uncertain,  speculative  or  apprehended,  415. 

character  of,  for  equitable  relief,  415. 

continuous  and  constantly  recurring;   equity,  415,  416. 

irreparable  for  equitable  relief,  415,  410. 

prospective,  threatened  or  apprehended;   equitable  relief,  419,  420. 

private  action;   public  nuisance.  422-436. 

depreciation  of  market  value  by  slaughter  house  a  special  injury,  426. 

direct  and  consequential;   damages,  497. 

See  Damage. 
INSTRUCTIONS  TO  JURY: 

when  should  not  raise  inference  that  building  not   nuisance;   reasonable 
use,  34. 
INSURANCE: 

rates,  increase  of,  does  not  make  oil  pipe  a  nuisance,  387. 

premiums,  increase  of,  as  factor;  steam  engines,  398. 

(T88) 


Index. 

(The  references  are  to  sections.) 

INTENT: 

rule  that  motive  or  intent  unimportant  and  exceptions  to  same,  43. 

See  Malice. 
INTENTION: 

does  not  affect  question  of  nuisance  from  trade  or  business,  94. 
INTERNAL  IMPROVEMENTS : 

authorized  by  State  not  a  public  nuisance,  67. 
INTOXICATING  LIQUORS : 

license  to  sell  does  not  authorize  unlawful  practices  on  premises,  74. 

sale  of,  if  licensed  not  a  nuisance  per  se,  71. 

when  ordinance  valid  making  place  for  sale  of,  a  nuisance,  83. 

power  of  municipality  to  pass  ordinances  as  to,  339. 

generally  subject  to  statutory  control,  339,  note. 

ordinance  as  to  keeping  of,  construed,  372. 

See  Grogshop,  Liquoe  Nuisance. 
INTRUSION : 

effect  of  judgment  upon  information  of,  66. 
IOWA: 

code;  definition  nuisance,  4,  note. 
IRON  WORKS: 

smoke  from,  purchase  of  premises  with  knowledge  of,  143. 
IRRIGATING  DITCH: 

right  of  municipality  to  fill,  348,  note. 
IRRIGATION: 

ditch  or  canal;   pollution  of  waters,  307. 

See  Waters. 

JACKS: 

keeping  of,  ordinance  as  to,  5,  note. 

and  stallions,  standing  of,  common  nuisance,  6,  note. 

and  stallions,  9,  note. 

when  putting  to  mares  a  nuisance,  196. 

See  Stallions. 
JAIL: 

where  erection  of,  will  not  be  restrained,  70. 
on  public  square  a  nuisance,  213. 
erection  of,  not  restrained,  403. 
JARS: 

See  Noises,  Jaes  and  Vibrations. 
JETTY: 

projecting  into  waters,  275. 
JO-BOAT: 

below  high  water  mark  a  nuisance,  273. 
JOINDER : 

of  parties,  443. 

wife  and  heirs  of  deceased  husband,  445. 


(789) 


Index. 

(The  references  are  to  sections.) 

JOINDER— Continued. 

parties;   lessees,  445. 

husband  and  wife  in  suit,  445. 

several  parties  plaintiff  may  be  joined,  446. 

of  partners  in  suit  unnecessary,  446. 

See  Pasties. 
JUDGMENT: 

for  abatement,  enforcement  of,  416,  note. 

for  abatement  of  nuisance,  when  proper,  when  not,  416,  note. 

that  nuisance  be  abated,  when  can  be  rendered,  416,  note. 

of  abatement;   enforcing  same,  416,  note. 

for  abatement  nuisance;   when  proper,  when  not,  416,  note. 

when  erroneous  as  to  repairing  bridges  by  chosen  freeholders,  449,   note. 

See  Decree. 
JURISDICTION : 

befouling  public  stream,  4,  note. 

to  abate  nuisance,  9,  note. 

"concurrent"  jurisdiction,  waters,  273. 

of   State   and   Federal    court*;   controversies    between    States;   State    and 
Federal  law,  299. 

of  equity  to  enjoin,  364,  note. 

equity,  essentials  of;   remedy  or  relief,  415,  416. 

of  equity  not  an  original  jurisdiction,  416. 

equity  lies  where  highway  obstructed,  424. 

constitutionality  of  statute.  450,  note. 

notice  of  action  as  prerequisite  to,  456,  note. 
JURY: 

question  of  navigability  is  for  jury,  273. 

instructions  to,  as  to  damages  for  injury  to  fishery,  276. 

difficulty  in  ascertaining  damages,  306. 

estimation  of  damages  by,  488,  note. 

right  of  trial  by;    Miller  case;    equity,  493. 
JUS  PRIVAT1  M: 

of  king  in  soil  under  water,  66. 

interference  with,  a  nuisance,  66. 
JUS  PUBLICUM: 

injury  to  the,  5,  note. 

interference  with,  a  nuisance,  66. 

in  soil  under  water,  66. 

KING: 

no  right  by  prescription  against,  51. 
KNOWLEDGE : 

See  Laches. 


(790) 


IjSDEX. 

(The  references  are  to  sections.) 

LACHES: 

acquiescence,  knowledge  or  failure  to  complain;  estoppel,  485. 
See  Acquiescence. 

LAKE: 

inland  navigable  lake,  piers  and  wharves  extending  into,  275. 
garbage  deposited  in,  causing  injury  to  fishing  nets,  276. 
as  source  of  city  water  supply;   bathing  in  lake,  304. 
See  Navigable  Waters,,  Waters. 
LAKE  MICHIGAN : 

ownership  of  land  beyond  water's  edge,  63. 
LAMP  POSTS: 

removal  of,  by  municipality,  372. 
LAND: 

injury  to,  may  be  a  nuisance,  2,  note. 

when  action  lies  for  nuisance  to,  19. 

cultivation  of,  in  usual  manner;   when  no  injunction,  33. 

when  municipality  liable  for  expense  of  filling,  84. 

municipality  may  order  owner  to  fill  in,  84. 

right  to  develop  natural  resources  on,   100. 

distinction  between  nuisance  affecting  air  and  those  affecting  land,  189. 

deposits  upon,  of  mining  debris,  277. 

taking  of  private  property  by  overflowing,  278. 

taking  of.  by  city  for  sewer  condemnation,  278. 

discharge  of  filthy  water  upon,  278. 

filth  from  sewer  cast  upon,  283,  284. 

discharge  of  sewage  upon,  286. 

with  stagnant  water  thereon  may  be  filled  and  drained,  305. 

person  has  right  to  beneficial  use  of,  311. 

filling  up  low  land;   police  power,  362. 

deposits  on,  garbage,  ashes,  ofl'ensive,  etc.,  matter,  396. 

unsightly  appearance  by  deposits  not  a  nuisance,  396. 

submerged  by  diversion  of  waters;   equitable  relief,  416. 

deposits  on;   private  action,  436. 

necessity  of  interest  in  to  entitle  to  remedy,  444. 
See  Property,  Public  Lands. 
LANDLORD: 

and  tenant;  joinder,  443. 

remedy;   parties,  443. 

and  tenant;   liability;   distinction  to  be  observed,  461. 

when  liable  to  third  persons,  462,  463,  466. 

liability  of;   defective,  dangerous,  etc.,  condition  of  premises,  463. 

lessor  of  structure  or  building  for  public  entertainment  liable,  464. 

liability  of  lessee  when  sublets,  465. 

liability  of,  to  tenant,  467,  468. 

and  tenant;   liability  where  lease  nine  hundred  and  ninety-nine  years,  469. 

and  tenant;   obligation  to  repair,  470,  471. 

(791) 


Index. 

(The  references  are  to  sections.; 

LANDLORD— Continued. 

repairs;   several  tenements  in  building  and  lease  of  entire  dwelling;   lia- 
bility, 470,  note, 
when  entitled  to  damages  instead  of  lessees,  490,  note, 
and  tenant;    rental  value;   damages,  493. 
of  where  lots  vacant;   recovery,  443. 

See  Lessee,  Pasties  Liable,  Remedies,  Tenant. 
LANDOWNER: 

remedy;   parties,  443. 

successive  owners  and  occupants ;   remedy,  443. 
sale  by,  pending  suit;   recovery.  44.3. 
not  owner  when  nuisance  erected;   remedy,  443. 
liability  generally;    instances,  453. 
when  liable  to  third  persons,  402,  463,  466. 
liability  contractor,  etc.,  472. 
LAUNDRY: 

where  nuisance  from,  can  be  avoided,  90. 

not  a  nuisance  per  se,  122. 

may  be  enjoined  from  causing  injury.    122. 

when  business  of  will   not  be  enjoined  as  a  nuisance  on  account  of  jars 

and  vibrations,   182. 
effect  of  ordinance  declaring  laundry  a  nuisance,  333. 
ordinance  requiring  permit  for,  not  valid,  336. 
LAW : 

remedy  at,  inadequate;   equitable  relief,  415,  416. 
establishment  of  right  at  law  whether  a  prerequisite.  416,  417,  418. 
remedy  at,  inadequate;   relief  in  equity  to  State,  437. 
mistake  of,  no  defense,  487. 
LAWFUL  ACT: 

though  act  done  is  lawful  nuisance  may  exist,  4. 
LAWS: 

See  Codes,  Statutes. 
LEAD  POISONING: 

person  peculiarly  susceptible  to,  20. 
LEADWORKS : 

when  not  a  public  nuisance,  20. 
LEASE: 

See  Laxdlobd. 
LEEDS  IMPROVEMENT  AMENDMENT  ACT,  291. 
LEGALIZED  NUISANCES,  24,  67-80. 

public  nuisance  not  legalized  by  prescription,  51. 

internal  improvements  authorized  by  State  not  public  nuisance,  67. 

telephone  pole  not  a  nuisance,  67. 

act  authorized  by  law  can  not  be  a  nuisance,  67. 

bridge  over  navigable  river  legalized  by  act  of  Congress,  67. 

where  dam  authorized,  67. 

(792) 


Index. 

(The  references  are  to  sections.) 

LEGALIZED  NUISANCES— Continued. 

company  authorized  to  manufacture  gas  not  liable  to  indictment,  67. 

plank  road  authorized  by  State,  effect  of  extension  of  city  limits,  67. 

acts  authorized  by  legislature;   English  rule,  68. 

act  authorized  by  parliament  not  nuisance,  68. 

act  done  under  order  of  board  of  trade  in  England,  68. 

discharge  of  current  electricity  into  the  earth,  68,  note. 

when  legislative  authority  does  not  relieve  from  liability  for  damages,  69. 

must  be  no  negligence  in  doing  act  authorized,  69. 

having  sanction  of  State  for  doing  an  act  is  justified,  69. 
erican  rule,  69. 
elevated  railway;   liability  for  damages,  69. 
rule  in  United  States  differs  from  English  rule,  69. 
legislative  authority  confers  no  right  to  create  a  nuisance,  69. 
where  elevated  railway  authorized  by  legislature,  69. 
legislature  omnipotent  within  constitutional   limits,  69. 
liability  in  construction  of  work  of  public  utility,  69. 
where  statute  authorizes  taking  of  land  for  sewer,  69,  note, 
where  street  railways  authorized,  70. 
when  erection  of  jail  will  not  be  restrained,  70. 
erection  of  public  buildings,  70. 

when  railroad  and  use  of  steam  not  a  public  nuisance,  70. 
as  to  injuries  from  construction  of  railroad,  70. 
authorized  use  of  highway  by  individual,  70. 
bridge  over  navigable  river,  70. 

construction  of  railroad,  damnum  absque  injuria,  70. 
unauthorized  use  of  steam  as  motive  power,  70,  note, 
stockyards  of  railroad  company,  71. 
necessary  noise  in  construction  of  shaft  for  tunnel,  71. 
construction  of  canal,  71. 

sewer  constructed  in  accordance  with  statute.  71. 
when  gas  plant  a  nuisance,  71. 
blowing  of  whistles  on  trains,  71. 

sale  of  intoxicating  liquors  if  licensed  not  a  nuisance,  71. 
ringing  of  factory  bells,  71. 
duty  of  railroads  as  to  stock  yards,  71,  note. 

railroad,  though  authorized  by  statute,  may  be  liable  for  nuisance,  72. 
authorization  by  statute  of  temporary  erections,  72. 
construction  of  statutes  authorizing  acts,  72. 

statutes  in  derogation  of  private  rights  to  be  strictly  construed,  72. 
where  nuisance  caused  by  improper  construction  of  work,  73. 
corporation  must  so  use  powers  as  not  to  injure  others,  73. 
nuisance  caused  by  manner  of  doing  act,  73. 

grant  of  franchise  gives  no  right  to  cause  unnecessary  damage,  73. 
license  for  concert  hall  does  not  authorize  nuisance,  74. 
in  prosecution  of  a  work  cannot  store  explosives  with  impunity,  74. 

(793) 


IxTVEX. 

(The  references  are  to  sections.) 

LEGALIZED  NUISANCES— Continued. 

cannot  confiscate  private  property,  74. 

nuisance  caused  in  construction  of  reservoir.  74. 

cannot  injure  others  in  construction  of  sewer,  74. 

license  for  liquor  traffic  does  not  authorize  unlawful  practices  on  prem- 
ises, 74. 

when  dam  authorized  hy  legislature  a  nuisance,  74. 

noises  from  operation  of  railroad,  75. 

ringing  of  bells  in  operation  of  railroad,  75. 

alteration  of  highway  by  railroad  company,  75. 

construction  of  turntable  by  railroad,  75. 

use  of  locomotives  by  railroad,  75. 

railroads  must  not  exercise  powers  negligently,  75. 

maintenance  of  stationary  engine  by  street   railway.  75.  note. 

maintenance  of  coal  chute  by  railroad.  7~>.  note. 

duty  of  railroad  as  to  land  acquired  in  city  for  terminal  purposes,  75, 
note. 

statute  permissive:  powers  must  be  exercised  in  conformity  with  private 
rights,  76. 

exercise  of  discretion  in  location  of  sewer,  76. 

legislative  authority  for  gives  no  righl    to  maintain  nuisance,  76. 

where  location  of  gas  plant   not  designated,  76. 

statute  permissive;   cattle  yard-  of  railroad,  T « I. 

where  statute  permissive:   Ideality  not    designated,  T'i. 

where  locality  not  designated  for  construction  of  roundhouse.  76. 

where  location  of  waterworks  plant  not  designated,  7(i. 

construction  of  coal  sheds  by  railroad,  7i>.  note. 

statute  prescribing  thickness  of  walls  of  building  does  not  authorize 
nuisance  by  use  of  huilding,  77. 

effect  of  a  mere  recognition  by  statute  of  a  business  or  occupation,  77. 

obstruction  of  sidewalk  authorized  by  city,  78. 

waiting  room  in  street  authorized  by  city,  78. 

railroad  in  street  must  not  exceed  right  granted,  78. 

booth  for  sale  of  newspapers  on  sidewalk,  7s. 

structure  in  street  authorized  by  municipality,  78. 

railroad  in  street  authorized  by  municipality,  78. 

acts  authorized  by  municipality,  7s. 

authorization  of  municipality  of  obstruction  of  streets.   78. 

liability  for  negligence  in  making  authorized  excavations  in  street,  78. 

openings  in  sidewalk.  78. 

municipality  cannot  contract   away   authority  to   prevent  nuisances,   79. 

where  bawdy  house  licensed  by  municipality.   79. 

awning  authorized  by  municipality,  79. 

water  tanks  erected  under  municipal  authority.  70. 

erection  of  slaughter  houses  authorized  by  municipality,  79. 

municipality  may  subsequently  forbid  act  it  has  licensed,  79. 

* (794) 


IXDEX. 

(The  references  are  to  sections.) 

LEGALIZED  NUISANCES— Continued. 

hitching  posts  erected  under  municipal  authority,  79. 

market  in  street  authorized  by  municipality,  79. 

permission  by  municipality  to  run  steam  engine,  79. 

pier  on  street  authorized  by  municipality,  79. 

municipality  must  keep  within  scope  of  powers  granted,  79. 

limitations  on  power  of  municipality,  80. 

municipality  cannot  unlawfully  interfere  with  right  of  access,  80. 

maintenance  of  sewers  by  municipality,  80. 

municipality  cannot  establish  drainage  system  which  will  be  a  nuisance, 

80. 

power  must  be  conferred  on  municipality  to  enable  it  to  legalize,  80. 

municipality  cannot  authorize  nuisance  impairing  health,  80. 

where  nuisance  caused  by  smoke,  147. 

noise  from  operation  of  railroad,  185. 

noises  from  legalized  business,  185. 

railroad  not  authorized  to  create  nuisance  by  its  cattle  yards,  209. 

legislature  can  not  authorize  market  place  in  street  without  compensa- 
tion, 228. 

use  of  highway  by  railroad,  242,  243,  244. 

duty  in  construction  of  railroads  in  streets,  243. 

railroad  abutments  and  bridges  in  highway,  250. 

power  of  municipality  to  authorize  obstruction  of  or  nuisances  in  high- 
ways, 260,  261. 

municipality  can  not  legalize   railroad   in   street   unless   power   expressly 

given,  261. 

right  of  municipality  to  remove  dam  where  authorized,  348. 

See  Statute. 
LEGAL  RIGHTS: 

must  be  invaded  for  equitable  relief,  22. 

must  be  invaded,  27. 
LEGISLATIVE  POWER: 

to  declare  what  are  nuisances,  2,  note. 
LEGISLATURE : 

power  of,  to  declare  nuisance,  4,  note. 

power  of,  to  legalize  nuisances,  69. 

power  of,  to  authorize  obstructions  in  highway,  70. 

power  of,  to  declare  smoke  a  nuisance,  149. 

may  regulate  interments  of  dead,  393. 

dead  animals,  411. 
See  Congress;  Legalized  Nuisances;  Statute;  Statutory  Nuisances. 

LESSEE : 

and  lessor,  4,  note;   16,  note. 

lumber  piles  maintained  by,  111. 

employee  of,  owner  not  liable  to,  for  explosion,  385 

nuisance  to  others,  not  to  lessee,  403,  note. 

(795) 


Index. 

(The  references  are  to  sections.) 

LESSEE— Continued. 
unsafe  ceiling,  403. 

of  erector  of  nuisance,  notice  to  abate,  457. 
warehouse  part  of  Brooklyn  bridge,  suit  to  enjoin,  445,  note 
See  Landlord,  Tenant. 
LESSOR: 

and  lessee,  4,  note;    1G,  note. 

liability  of,  for  lumber  piles  maintained  by  lessee,   111. 
See  Landlord. 
LIABILITY: 

See   Remedies. 
LIBERTY  POLE: 

erection  of,  in  highway,  254. 
LICENSE: 

effect  of,  to  sell  intoxicating  liquors,  71. 

for  liquor  business  does  not  protect   from  unlawful   practices,  74. 
by  municipality  to  maintain  bawdy  house,  79. 
for  dog,  may  be  required,  197,  note, 
to  use  street  for  building  materials,  effect  of,  229. 
effect  of,  to  make  coal  hole,  vault  or  excavation  in  sidewalk,  232. 
by   parol,   reservation   of  dam,   327. 
for  use  of  stationary  engine,  398. 
no    defense,    487. 
LICENSEES: 

ditch  constructed  by,  placer  mining,  277. 
LIFE : 

as  element  of  definition  of  nuisance,  2,  4,  5. 
enjoyment  of  rendered  uncomfortable,  a  nuisance,  2,  note, 
rendered  uncomfortable,  degree  of  injury,  19. 
physical  comfort  of,  must  be  essentially  interfered  with,  22. 
LIGHT: 

easement  of,  36,  37. 
English  Prescription  Act,  30. 
and  air;   abutting  street  owners;  easement,  36. 
and  air,  obstruction  of,  by  elevated  railway,  G9. 
obstruction  of,  by   adjoining  building  on   highway,   234. 
structure  on  or  above  highway  obstructing,  236. 
and  air.  fences  and  structures,  403. 
LIGHTS: 

doctrine  of  ancient  lights,  36. 
LIME  KILN: 

action  on  case,  34. 

when  a  nuisance,  111. 

smoke  from  rendering  air  of  dwelling  unwholesome,  145. 

smoke  from,  145. 

ordinances  as  to  construed,  39. 

(796) 


Ikdex. 

(The  references  are  to  sections.) 

LIMITATIONS: 

statute  of,  459,  4G0. 
LIQUOR: 

Massachusetts  statute,  4,  note. 
LIQUOR  NUISANCE: 

civil  or  criminal  actions  or  remedies,  399-401. 

when  express  company  liable,  399. 

amount  of  alcohol  as  factor,  400,  note. 

remedy  in  equity,  415. 

decree,  judgment  and  order,  from,  etc.,  416,  note  16. 

preliminary  injunction,  436. 

statute  authorizing,  citizen  to  sue,  valid,  446. 

See  Grogshop,  Intoxicating  Liquors. 
LIVERY  STABLE: 

not  a  nuisance  per  se,  200. 

burden  on  complainant  to  show  it  is  a  nuisance,  200. 

may  be  nuisance  from  manner  of  construction  or  conducting,  201. 

duty  of  proprietor  as  to  care,  201. 

smells  and  noises  from  a  nuisance,  201. 

where  nuisance  of  smaller  stable,  no  defense,  201. 

proper  defendants  in  action  for  nuisance  by,  201. 

no  defense  that  properly  built  or  kept,  202. 

that  location  desirable  or  convenient  no  offense,  203. 

statute  prohibiting  erection  of  near  church,  construed,  205. 

proceeding  to  enjoin  erection  of,  205. 

proceeding  to  enjoin  proposed  use  of  building  as,  206. 

evidence  on  question  of  as  a  nuisance,  207. 

construction  or  maintenance  of  as    affected  by  ordinance,  210. 

measure  of  damages  for  nuisance  caused  by,  211. 
LOADING  OF  GOODS,  223,  224,  225,  226. 

See  Highways. 
LOCALITY: 

as  affecting  character  of  nuisance,  16. 

a  factor  as  to  right  to  pure  and  fresh  air,  38. 

effect  of  development  of,  54. 

right  of  railroad  to  choose  in  construction  of  roundhouse,  76. 

where  not  designated,  legalized  nuisance,  76. 

effect  of,  in  case  of  trade  or  business,  95,  96. 

effect  of  living  in  city,  trade  or  business,  96. 

effect  of  living  in  manufacturing  part  of  city,  96. 

change  in  character  of,  coming  into  nuisance,  trade  or  business,  97. 

change  in,  from  residence  to  business  or  trade,  98. 

blacksmith  shop,  by  reason  of,  may  be,  107. 

in  case  of  a  fertilizer  factory,  118. 

merry-go-round  in  residence  locality  may  be  abated  by  municipality,  123. 

(797) 


Index. 

(The  references  are  to  sections.) 

LOCALITY— Continued. 

slaughter  house  nuisance  by  reason  of,  127. 

subsequent  development  after  location  of  slaughter  house,   128. 

as  an  element  in  case  of  nuisance  from  smoke,  140. 

in  case  of  noisome  smells,  163. 

effect  of,  in  case  of  noisome  smells,  163,  165. 

effect  of,  in  case  of  noises,  jars  and  vibrations,  184. 

where    no    location   designated    for    legalized    business,    noises,    jars    and 
vibrations,  186. 

convenience  or  necessity  as  to,  riparian  rights,  269. 

municipal  liability  where  location  of  public  works  not  designated,  356. 

dangerous  nuisances,  384,  385. 

where  bees  kept,  a  factor,  392. 

as  affecting  pest  house,  397. 

of  gas  wells  as  factor,  409. 
LOCATING: 

near  existing  nuisance,  49. 
LOCATION : 

and  surroundings,   15,   16. 

a  factor,  dangerous  nuisances,  coal  oil  and  gasoline,  388. 

of  cooking  range,  as  factor,  394. 

a  factor   in   determining,  whether   railroad   siding  or   switch   a   nuisance, 
425. 
LOCKS: 

defective,  in  dam,  273. 

State  may  authorize  erection  of,  in  waters.  275. 
LOCOMOTIVE : 

used  by  railroad,  75. 
LOGS: 

piled  in  highway,  a  nuisance,  258. 

obstruction)  which    prevents    floating   logs,   a  nuisance,   273. 

boom  for  logs,  a  nuisance,  273. 

causing  injury,  private  action,  436. 
LONDON  IMPROVEMENT  CLAUSES  ACT,  291. 
LOTS: 

municipality  may  require  filled,  where  below  grade,  348. 
LUMBER  KILN  . 

liability  of  lessor  for,  where  maintained  by  lessee,  111. 
LUMBER  PILES: 

maintained  by  lessee,  111. 
LUNATIC  ASYLUMS  ACT,  291. 
LUXURIES: 

articles  of  under  protection,  26. 

property  rights  generally,  26. 


(798) 


Index. 

(The  references  are  to  sections.) 

MACHINERY: 

dutv  as  to  use  of,  89. 

in  mills,  where  no  prescriptive  right  to  operate,  57. 

left  unguarded,  382. 

diversion  of  water  which  operates,  equitable  relief,  416. 

MAINE  STATUTE 

as  to  definitions,  4  and  note. 
MALICE: 

fence  erected  for  malicious  purpose,  37. 

in  erecting  fence,  404. 

in  causing  noises,  17G. 

See   Intent. 

MALUM  IN  SE,  15. 
.MANAGER: 

of  business  liable,  475. 
MANDAMUS: 

to  compel  restoration  of  highway  by  railroad,  219. 

to  compel  removal  of  obstruction   in  highway,  219. 
MANDATORY  INJUNCTION: 

See  Injunction,  Equity. 

MANHOLES : 

in  sewers,  gases,  280. 

dumping  refuse  in,  353. 
MANUFACTORY: 

pot  boiling  establishment,  9,  note. 

asphalt  factory,  fumes  from,  9,  note. 

odors  from,  19,  note. 

for  bleaching,  pollution  of  water,  303. 

acid  works,  remedy,  414. 

See    Business,    Trade. 

MANUFACTURING : 

processes,  pollution  of  waters,  303. 

See    Business,    Trade. 

MANURE: 

deposited   from  barn,  a   nuisance,   204. 

from  stable  deposited  on  land,  396. 

See  Excrement. 
AfARTUF  CUTTING  AND  POLISHING  WORKS: 

„o!f .  froln^t  produce  substantial  injury  to  bo  a  nu.sanoe,  182. 

MARES: 

putting  of  jacks  to,  196. 

MARKET: 

where   authorized  by  municipality,    /«. 

where  smell  from  can  be  avoided,  90. 

impeding  access  to  premises,  228,  note. 

£  Mgbway,  city  a  proper  defendant,  228,  note. 

(799) 


Index. 

(The  references  are  to  sections.) 

MARKET  HOUSE: 

obstructing  highway,  2,  note. 
MARKET   PLACE: 

on  street  a  purpresture,  61. 

in  highway  as  a   nuisance,  228. 

legislature  can  not  authorize  in  street  without  compensation,  228. 
MASSACHUSETTS: 

statute,  definitions,  nuisance,  4,  note. 
MASTER  AND  SERVANT: 

when  employer  not  liable  for  explosion,  386. 

contractor,  independent  contractor,  472,  note. 

See  Contractor,  Employee,  Employer,  Servant. 
MAXIMS: 

damnum  absque  injuria,  39,  40. 

sic  utere  tuo  non  alienum  non  laedas,  27  et  seq.,  76. 

sic  utere,  etc.,  definition   of  nuisance  with   reference  to,   11. 

sic  utere,  etc.,  control  of  use  of  property,  28. 

sic  utere,  etc.,  to  be  applied  with  caution,  30. 

sic  utere,  etc.,  to  be  limited.  32. 

sic  utere,  etc.,  not  of  universal  application,   33. 

sic  utere,  etc.,  and  motive  or  intent,  43. 

ubi  jus  ibi  remedium,  39. 
MAYOR: 

liability  of,  449. 

liability  of  for  destruction   of   building,   350. 
MEASURE  OF  DAMAGES: 

See   Damages. 
MEDICINAL  SPRINGS:        9,  note. 
MERCHANDISE: 

exposure  of  or  sale  on   sidewalk.  227. 

loading  and  unloading  of, 

See   I  Ik,  1 1  ways. 
MERRY-GO-ROUND : 

whether  a  nuisance  dependent  on   circumstances,   123. 

town  council  may  abate  where  in  a  residence  neighborhood,  123. 
MICROSCOPIC  EXAMINATION  : 

as  compared  witli  visible  actual  injury,  22. 
MILL:      318. 

erection  of;   sic  utere,  etc.,  30. 

when  machinery  is  not  protected  by  prescriptive  right,  57. 

a  nuisance  by  reason  of  locality,  95. 

evidence  showing  nuisance  by,   86. 

injunction  against  erection,  404. 

injunction  restraining  erection  of  refused,   103. 

smoke  from  operation  of,  143. 

where  nuisance  by  noise  from  corn  and  flouring  mill  can  be  avoided,  187. 

(800) 


Index. 

(The  references  are  to  sections.) 

MILL — Continued. 

sawdust  from  deposited  in  water,  303. 

pollution   of  water  used   for   coloring  woolen  goods,   307. 

rebuilding  of,  318. 

explosion  of   digester  in   pulp   mill,   385. 
MILL  DAM:      320. 

a  public  nuisance,  no  prescriptive  right  to  maintain  can  be  acquired,  50. 

abatement  by  individual  of,  378. 

erector   of,   liability,   475. 

See  Dam. 
MILLER  CASE: 

rule  in;   rental  value;   landlord  and  tenant;   equity;   jury  trial,  493. 
MILL  OWNERS:      318. 

putrid  water  in  reservoir,  303. 
MILL  POM): 

filled  by  sewage,  286. 

in  town,  abatement  of,  305. 

in  abatement  of  municipal  authorities  proceed  at  their  peril,  347. 
MILL  RACES: 

and  streams,  318. 
MILL  SITES:  318. 
MINES: 

right  to  develop  and  operate  coal  mines,   100. 

pollution  of  waters,   mining  debris  and  deposits,  276,  277. 

waters   discharged   in   stream,   pollution,   303,   note. 

abandoned   flooding  another  mine,   412. 
MINING : 

waters  for,  205,  270. 

dumping   tailings   on   ground,  277. 

injury  on  land  by  hydraulic  mining,  277. 

ditch  divering  water  used  for  placer  mining,  277. 
MINING  DEBRIS: 

discharged  into  navigable  waters,  4,  note. 
.MINNESOTA: 

statute,  definition,   nuisance,  4,   note. 

statute,   definition   public   nuisance,   7,  note. 
MISDEMEANOR: 

to  bring  horse  infected  with  glanders  into  public  place,  193. 
MISSOURI  v.  ILLINOIS: 

The  Chicago  drainage  case,  299. 
MOB: 

house  destroyed  by,  no  defense  that  its  use  a  public  nuisance,  350. 
MONTANA : 

code,   definition   nuisance,   4,   note;    10,    note. 
MORALS: 

affected,  public  nuisance,  15. 

as  factor  in  definition,  5,  7. 

(801) 


Index. 

(The  references  are  to  sections/) 

MORTAR    BEDS: 

temporary  use  of  street  for  not  a  nuisance,  229. 

MORTGAGOR: 

remedy,   parties,   443. 
MOTIVE: 

See   Intent. 

MOVING  BUILDING: 

right  of  individual  to  protect  property  from  injury  from,   375. 
MRS.  WARREN'S   PROFESSION:       475. 
MUNICIPAL   AND   QUASI    MUNICIPAL   BODIES: 

liability,  278,  279,  439,  448. 

entitled  to  remedy,  439. 

See  Remedies,  Sewerage. 

MUNICIPALITY: 

power  to  define  and  abate  nuisance,  2,  note;    4,  note. 

may   maintain  bill   to   restrain    purpresture,   66,   note. 

validity  of  ordinance,  5,  note. 

in  authorizing  acts  must  keep  within   scope  of  powers   granted,   79. 

grant  of  powers  to  must  be  strictly  construed,   150. 

limitations  on  power  of  to  legalize  nuisances,  SO. 

no  power   to  legalize   act  where   authority    not   conferred,    80. 

no  power  to  establish  drainage  system  which  will  be  a  nuisance,  80. 

where  maintenance  of  sewers  by,  authorized,  80. 

can  not  authorize  a  purpresture.   61. 

when  acts  authorized  by  not  a  nuisance,  78. 

may  subsequently  forbid  act   it  lias  authorized,  7!>. 

cannot   contract   away   authority    to   prevenl    nuisances,   79. 

validity  of  ordinance  as  to  obstruction  of  sidewalk,  4,  note. 

acquiescence  of   to   vault   under   sidewalk,   52. 

authorization  by  of  obstruction  of  streets,  78. 

where  excavation   in   street    authorized  by,  78. 

where  waiting  room  in  street  authorized  by,  78. 

water  tanks  on   street    authorized    by,   79. 

where  railroad  in  street  authorized  by,  78. 

where  pier  on  street  authorized  by,  79. 

erection  of  hitching  posts  authorized  by,  79. 

authorization  by  of  awning,  79. 

where  market  authorized  by.  79. 

where  erection  of  slaughter  houses  authorized  by,  79. 

permission  by  to  run  steam  engine,  70. 

where  bawdy  house  licensed  by,  79. 

validity   of   ordinance  making  places   for   sale   of   intoxicating   liquors   a 
nuisance,   83. 

cannot  unlawfully  interfere  with   right  of  access,  80. 

may  be  given  power  to  till  in  land,  84. 

(802) 


Index. 

(The  references  are  to  sections.) 
MUNICIPALITY— Continued. 

may  be  authorized  by  legislature  to  prohibit  bowling  alleys,  84. 

when  liable  for  expense  of  filling  in  of  land,  84. 

may  be  given  power  to  declare  and  abate,  nuisances,  84. 

right  to  condemn  land  gives  no  right  to  Hood  land  not  condemned,  80. 

may  abate  merry-go-round  as  a  nuisance,  123. 

particular   ordinances   as   to   smoke   construed,    1.30. 

power  of  to  pass  ordinances  as  to  smoke,   150. 

power  of  to  regulate  emission  ox  smoke,  150. 

ordinance  limiting  emission  of  smoke  from  a  chimney  to  "three  minutes 

in   any   hour"  construed,   152. 
ordinance    regulating   smoke    from    tugboats,   not   violation   of    commerce 

clause   of  constitution,    1  .">.">. 
ordinance   as  to  smoking  in  street  cars.   154. 
liable  for  nuisance  caused  by  smells  from   garbage,    166. 
liability  of  for  nuisance  caused   by  smells,   169. 
general  power  to  abate  public  nuisances  confers  no  power  to  prohibit  use 

of  steam  whistles,  180. 
when  no  power  to  prohibit  keeping  of  stallions  for  service,  196. 
validity  and  effect  of  ordinances  as  to  animals,  197. 
power  to  pass  ordinances  as  to  dead  animals,  198. 
ordinance  as  to  dead  animals  construed,  198,  note, 
duty  as  to  maintenance  of  police  ambulance  stable,  201,  note. 
stable  in  violation  of  ordinance  as  to  building  line  not  a  nuisance  per  se, 

204,  note, 
powers  of,  as  to  cattle  enclosures,  210. 
powers  of,  as  to  stables,  210. 

power  to  abate  encroachment  on  highway  not  in  use,  216. 
town    sustaining    special    damage    for    nuisance    affecting    highway    may 

recover,  2 IS,  note, 
liability  of,  for  injury  to  individual  by  falling  show  case,  227. 
proper  defendant  in  case  of  nuisance  by  market  in  street,  228,  note, 
liability  of,  where  use  of  street  for  building  materials  licensed,  229. 
common   council   may   authorize  obstruction  of   street  by   building  mate- 
rials, 229,  note, 
effect  of  license  by,  to  make  coal  hole,  vault  or  excavation  in  sidewalk, 

232. 
can  not  authorize  encroachment  upon  street  of  building,  233. 
New  York  city  can  not  permit  encroachments  upon  streets,  233,  note, 
unauthorized  by;  buildings  in  street,  234. 
power  of,  to  remove  fences  from  highway,  239. 
right  of,  to  remove  trees  in  highway,  252. 

conclusiveness  of  determination  whether  trees  a  nuisance,  252. 
right  of,  to  destroy  trees  in  highway,  253. 
liability  of,  where  objects  in  highway  frighten  horses,  255. 
where  discharge  of  fireworks  authorized  by,  258,  note. 

(803) 


1.NDEX. 

(The  references  are  to  sections.) 

MUNICIPALITY— Continued. 

may  revoke  license  to  erect  awning,  258,  note. 

liability  of,  to  person  injured  by  fire  works,  2f>8,  note. 

power  of  New  York  city  as  to  booths  under  elevated  stairs,  2(i0.  note. 

power  of,  to  authorize  obstructions  of,  or  nuisances  in  highway,  260,  261. 

no  power  to  legalize  construction  of  railroad  in  highway,  261. 

no  power  to  authorize  connection  of  buildings  on  opposite  sides  of  street 

by  structure  over  street,  261. 
when  no  power  to  authorize  obstruction  of  sidewalk,  261. 
can  not  prevent  working  of  convicts  on  city  street,  262. 
when  it  may  authorize  erection  and   maintenance  of  poles  and   wires   in 

street,  261. 
power  over  highways  determined  by  legislative  authority,  262. 
no  power  to  declare  enclosure  of  railroad  tracks  a  nuisance,  262. 
can  not  prohibit  halting  of  persons  on  street  for  a  reasonable  time.  262. 
power  to  declare  thing  in  highway  nuisances,  262,  263. 
may  prevent  distribution  of  hand  bills  and  circulars,  263. 
may  prohibit  erection  of  hill  boards,  Jti.".. 
right  to  prohibit  use  of  locomotives  in  streets,  263. 
may  prohibit  erection  of  hitching  posts  on  streets.  263. 
liability  for  changing  grade  of  streets.  264. 
can  only  exercise  powers  conferred,  264. 

failure  to  perform  duty  to  keep  streets   free  from  nuisances,  264. 
liability  of.  for  deposit  of  garbage  in  streets,  264. 
liability  of,  for  defects  in  highway,  264. 

not  liable  for  permitting  platform   to  project  from  second  story  of  build- 
ing. 264,  note. 
liability  of.  for  nuisances  in  highway,  264. 
not  liable  for  non-removal  of  sunken  vessel,  273. 
depositing  garbage,  injuring  fishing  net-.  27(>. 

taking  stream  for  sewerage,  assessment  of  damages,  condemnation,  278. 
taking  land    for  sewer,  condemnation,  278. 
must  act  within  corporate  powers,  279. 
may  he  liable  though  commissioners  may  -lie  and  he  sued,  279, 

sewers  generally,  280. 

when  and  where  not  liable  for  sewer  nuisance,  280,  et  »eq. 
sewer  partly  constructed,  liability,  281. 
sewer  negligently  constructed  and  operated, 
disposal  of  sewage.  283. 
disposal  of  sewage,  284,  285,  286. 

not  authorized  to  create  nuisance  in  constructing  public  work,  285. 
distinction  between  plan  and  construction  of  sewers;   liability,  287. 
acquiring  land  beyond  its  limits  for  sewage  system,  293. 
sewage  discharged  into  city's  streets,  302. 
polluting  water  supply  of,  304. 

negligence  in  constructing  canal  of  insufficient  size,  306. 

(804) 


Index. 

(The  references  are  to  sections.) 

MUNICIPALITY— Continued. 

liable  for  diversion  of  water,  drains,  306. 

channel  for  surface  waters,  306. 

power  to  change  channel  of  watercourse,  effect  of,  306. 

liable  for  negligently  constructing  drain  or  sewer,  307. 

actual  damages,  when  recoverable  against,  for  digging  ditch,  307. 

when  liable,  canal  and  drains  causing  overflow,  307. 

right  of,  to  divert  and  fill  up  ditch,  312. 

flooding  private  property,  liability,  313. 

construction  of  dam  by,  325. 

ordinance  of,  valid,   though   statute  provides   for   punishment   of   similar 
offense,  330. 

powers  of,  generally,  330. 

may  authorize  board  of  health  to  abate  a  nuisance,  331,  note. 

license  from,  does  not  affect  right  of  board  of  health  to  abate,  331,  note. 

powers  of  boards  of  health,  331. 

cannot,  by  ordinance,  impose  unauthorized  restrictions  on  use  of  property, 
332,  note. 

power  to  declare  things  nuisances  must   be  exercised   in   reasonable  man- 
ner, 332. 

power  of  city  council  of  New  Orleans  to  declare  nuisances,  332.  note. 

order  of   city  council    declaring   structure   nuisance   not  conclusive,    332, 
note. 

power  of  board  of  supervisors  of  San  Francisco  to  declare  nuisance,  332, 

note, 
in   absence   of   legislative   power,   can   not  declare  an   act  or   omission   a 

nuisance.  332. 
powers  of,  to  declare  things  nuisances,  332. 
effect  of  ordinance  declaring  laundry  a  nuisance,  333. 
prima    facie    presumption    that    thing    a    nuisance    from    declaration    of, 

municipal  authorities,  .",:;:;. 
effect  of  ordinance  declaring  slaughterhouse  a  nuisance,  331. 
effect  of  declaring  thing  a  nuisance  Avhere  doubtful  whether  it  is  one,  334. 
effect  of  ordinance  as  to  rock  crushing  machine,  334. 
ordinance  as  to  dairy  and  cow  stable  construed,  335,  note. 
ordinance  declaring  nuisance  must  not  discriminate,  335,  336. 
declaring  thing  a  nuisance  must  be  uniform  in  operation,  335,  336. 
ordinance  as  to  removal  of  soap  factory  construed,  335. 
ordinance  requiring  special  resolution  for  slaughterhouse  not  valid,  336. 
ordinance  requiring  permission  of  municipal  authorities,  336. 
ordinance  as  to  public  laundries  construed,  330. 
ordinance  requiring  permit  for  dairies  construed,  33G. 
ordinance  requiring  permit  for  parades  and  processions  construed,  337. 
power  to  declare  cemetery  a  nuisance,  338. 

ordinance  prohibiting  burials  within  city  limits  held  invalid,  338. 
may  prohibit  maintenance  of  wires  on  roofs  of  biddings,  339. 

(805) 


Index. 

(The  references  are  to  sections.) 

MUNICIPALITY— Continued. 

power  to  pass  ordinances  as  to  intoxicating  liquors,  339. 

validity  of  particular  ordinances,  339,  340. 

ordinance  regulating  running  of  trains  construed,  339. 

ordinance  declaring  "all  public  picnics  and  open  air  dances"  nuisances 

is  invalid,  339. 
ordinance  as  to  lime  kilns  construed,  339. 
ordinance  as  to  barb  wire  fences  construed,  339. 
ordinance  as  to  weeds  construed,  340. 
may  prohibit  slaughterhouses  within  city   limits.  340. 
power  as  to  disorderly  houses,  340. 
power  of,  as  to  erection  of  structures,  341-341. 

mav  be  authorized  by  legislature  to  prohibit  erection  of  structures.  341. 
power  of,  as  to  erection  of  structures  where  not  authorized  by  legislature, 

342,  343,  344. 
power  of.  as  to  establishment  of  fire  limits,  342.  343,  344. 
ordinance  declaring  partially  burned  structure  a  nuisance  construed,  342. 

note, 
where  power  conferred  by  State  to  till  in  land.  345,  note, 
powers  to  summarily  abate.  345-352. 
power  to  summarily  abate  generally.  345. 
has  common  law  power  to  summarily  abate,  345. 
obligated  to  remove  nuisances  which  endanger  health.  345. 
may  regulate  use  of  property.  345. 

under    power   to    protect    health,    may    pass    reasonable   ordinances    for   re- 
moval of  nuisances.  345. 

not  liable  in  damages  for  summary  abatement.  345. 

when  genera]  statute  as  to  abatement  does  not  control  local  laws,  345. 

specific  provision   in  charter  as  to  abatement  controls  general   provision, 
345. 

when  removal  of  fence  not  justified.  340. 

limitation  on  power  to  summarily  abate,  •!4»1. 

must  produce  no  unnecessary  injury  in  abating,  34G. 

power  to  abate  in>t  unrestricted,  346. 

no  power  to  abate  unless  in  fact  a  nuisance,  346. 

filling  of  cellar  by,  to  abate  alleged  nuisance.  346,  note. 

order  of,  to  abate  not  conclusive.  :i|t;,  note. 

where  notice  tc  a,  prerequisite,  346. 

declaration  of,  that  building  nuisance  prima     aeu    evidence  of  such  fact, 
347,  note. 

proceeds  at  peril  in  abatement   of  nuisance,  347. 

right  to  fill  irrigating  ditch,  348,  note. 

when  filling  of  ditch  by.  not  justified.  348,  note. 

when  destruction  of  bill  board  not  justified.  348. 

may  abate  use  of  cesspool,  348. 

right  to  remove  dam  where  authorized  by  statute,  348. 

(S0G) 


Index. 

(The  references  are  to  sections.) 

MUNICIPALITY— Continued. 

particular  instances  of  power  to  abate,  348. 

may  require' lots  below  grade  to  be  filled,  348. 

may  abate  factory  where  injurious  to  health,  348. 

may  fill  up  a  creek  or  ditch,  348. 

may  destroy  building  where  safety  or  health  of  public  endangered,  349. 

right  to  remove  tenements,  349. 

right  to  remove  wooden  buildings,  349. 

building  must  be  a  nuisance  in  itself  to  justify  its  destruction,  349. 

right  to  remove  dwelling  house,  349,  note. 

power  to  remove  buildings  eminently  dangerous  to  life  construed,  349. 

liability  for  destruction  of  building  by  independent  board,  349. 

right  of,  to  destroy  building,  349,  350,  351. 

right  to  abate  structure  where  permit  given  by,  349. 

where  building  destroyed  by  a  mob  no  defense  that  its  use  was  a  nui- 
sance, 350. 

right  to  destroy  tenements,  350. 

in  abating,  must  not  unwarrantably  invade  rights  of  private  property, 
350. 

right  to  abate  structure  where  nuisance  consists  in  use  of  only,  350. 

liability  of  mayor  for  destruction  of  building,  350. 

liability  of  burgess  for  destruction  of  building,  350. 

liability  where  officers  act  outside  of  scope  of  duty  in  destroying  building, 
350. 

house  used  as  house  of  ill  fame  can  not  be  destroyed,  350. 

destruction  of  building  to  prevent  spread  of  contagious  diseases,  350, 
note. 

right  of  owner  of  building  to  injunction  against  destruction  of,  351. 

owner  of  building  no  right  to  compensation  for  destruction  of,  352. 

destruction  of  building  as  a  nuisance  not  exercise  of  power  of  eminent 
domain,  352,  note. 

destruction  of  property  as  a  nuisance  not  an  appropriation  to  public  use, 
352,  note. 

unauthorized  grant  by,  of  right  to  obstruct  highway,  353. 

where  permit  by,  to  dump  refuse  into  manhole  of  sewer,  353. 

effect  of  permit  by,  to  use  street  for  fire  work  display,  353. 

liability  for  deposit  of  garbage,  353. 

what  petition  in  action  against,  for  a  nuisance,  should  allege,  353,  note. 

liability  for  nuisance,  353-358. 

when  relieved  from  liability  for  a  nuisance,  353. 

though  liable  to  indictment  for  nuisance,  is  liable  to  individual,  353. 

may  be  liable  for  nuisance,  353. 

liability  for  failure  to  enact  ordinances  to  prevent  nuisances,  354. 

distinction  between  powers  ministerial  and  legislative,  354. 

whether  power  ministerial  or  legislative  often  difficult  question,  354. 

where  duties  imposed  on,  must  be  performed,  354,  note. 

(SOT) 


Index. 

(The  references  are  to  sections.) 
MUNICIPALITY— Continued. 

particular  instances  of  liability,  355,  356. 
liability  for  nuisance  caused  by  wall,  355. 
liability  for  nuisance  caused  by  sewer,  355. 
where  person  locates  in  vicinity  of  dump  for  garbage,  355. 
liability  for  maintenance  of  dump  for  garbage,  355. 
liability  for  public  works.  355,  356. 

may  be  liable  for  nuisance  caused  by  public  works,  355. 
liability  where  location  of  public  works  not  designated,  356. 
liability  for  pumping  station  where  location  not  designated,  356. 
liability  for  maintenance  of  hospital,  356. 
liability  for  nuisance  by  privy  vault  of  school  house,  356. 
when  not  liable  for  defects  in  school  house,  356. 
liability  for  failure  to  exercise  powers  as  to  highways,  357. 
liability  for  failure  to  remove  a  wall,  357. 
liability  for  failure  to  remove  or  abate  nuisance,  357.  '■'<■ 
not  liable  for  failure  to  abate  nuisance  on  private  property.  358. 
when  not  liable  for  failure  to  abate  water  station  a  nuisance,  358. 
not  liable  where  wall  of  burned  building  falls  on  adjoining  premises,  358. 
abatement  by,  of  pollution  of  water  supply,  372. 
removal  of  lamp  posts  by.  372. 
abatement  of  nuisance  by,  372. 
ordinance  as  to  liquor  nuisance  construed,  372. 
closing  by,  of  brewery  as  a   nuisance,  372. 
removal  of  electric  wires  by,  372. 

rights  where  street  railway  uses  horses  under  franchise  to  use  cable,  378. 
rights  where  nuisance  consists  in  use  of  railroad  tracks,  378. 
charter  or  ordinance  violated  a-  to  explosives,  385. 
permission  of,  to  locate  cemetery,  393. 

order  as  to  use  of  steam  engines,  branch  of,  burden  of  proof,  398. 
power  as  to  dead  animals.   411. 
obligation  of,  to  abate  unsafe  building,  415,  note, 
sewer  causing  peculiar  damage  to  individual,  city  liable,  431. 
action  by,  to  abate  obstruction  of  street,  439,  note, 
when  not  liable  for  explosion  of  fireworks,  448. 
liability  of  officers  of,  44*i. 
joint  liability  of,  and  citizens,  474,  note. 

liable  though  other  sources  responsible  for  sewage,  477,  note. 
See  Chabteb,  Ordinances. 
MUSIC  LESSONS: 

noises  caused  by,  175. 

NAPHTHA: 

dangerous  nuisances,  387. 
NATURAL  RESOURCES : 

right  to  develop  one's  landj  100. 


Index. 

(The  references  are  to  sections.) 

NATURE  AND  CHARACTER: 

fastidious  taste,  4. 

inconvenience,  etc.,  must  not  be  fanciful,  4. 
NAVIGABLE  RIVER: 

right  to  soil  or  bed  of,  in  sovereign,  62. 
NAVIGABLE  WATERS: 

obstruction  of;  definition  of  nuisance,  4,  7. 

obstruction  of,  4,  note. 

obstruction  of,  as  nuisance  per  se,  12. 

discharge  of  mining  debris  into,  4,  note. 

right  to  property  in  bed  of,  was  in  sovereign  at  common  law,  62. 

title  to  land  under,  in  State,  03. 

ownership  in  individual  to  lands  under  recognized,  by  State,  63. 

rule  in  Michigan  as  to  rights  to  soil  under,  64. 

rights  to  lands  under,  Federal  courts  follow  decisions  of  State  courts,  64. 

rights  to  lands  under,  question  for  State  to  determine,  64. 

rights  of  riparian  owners  generally,  64. 

rights  of  riparian  owner  to  build  wharf,  65. 

right  of  riparian  owner  to  access  to  navigable  part  of, 

dam  obstructing,  is  nuisance,  though  authorized  by  legislature,  74. 

See  Wateks. 
NAVIGATION: 

obstruction  of  river,  9,  note. 
NECESSITY : 

held  no  defense,  487. 
NEGLIGENCE : 

as  factor,  18,  note. 

distinguished  from  nuisance,  18. 

children  injured  by  attractive  nuisance,  18. 

may  exist  in  relation  to  a  nuisance,  18. 

skill  and  care,  where  important,  44. 

care,  reasonable  care  or  precaution,  or  want  thereof,  44. 

neglect  to  abate  nuisance,  omission  of  duty,  48. 

must  be  none  in  doing  legalized  act,  69. 

as  an  element  in  case  of  trade  or  business,  92. 

person  liable  for  damage  caused  by  blasting,  though  not  negligent,  108. 

officers  and  agents  of  municipal  and  quasi  municipal  bodies,  279. 

discharge  of  sewage  into  tidal  waters,  285. 

maintenance  or  use  of  sewers,  287. 

in  constructing  canal  of  insufficient  size,  306. 

construction  of  ditch,  306. 

of  city  in  constructing  drain  or  sewer,  307. 

of  contractor,  unguarded  machinery,  382. 

gunpowder,  383. 

dangerous  nuisances,  383. 

explosion,  383. 

(809) 


IXDEX. 

(The  references  are  to  sections.) 
NEGLIGENCE— Continued, 
powder  magazines,  383. 
as  factor  in  explosion,  385,  note, 
in  caring  for  crude  oil,  may  create  nuisance,  387. 
coal  oil  and  gasoline  tanks,  ignition,  388. 
inflammable  substances,  ignition  of,  388. 
in  conducting  hospitals  and  pest  houses,  397. 
explosion  of  steam  boiler,  398. 

liability  of  owner  and  independent  contractor,  472,  note, 
of  contractor,  472,  note, 
contributory  negligence,  due  care,  481. 
actual  damages,  498,  501. 

See  Duty,  Seweb. 

NEIGHBORHOOD: 

as  factor  in  definition,  5,  7. 
NETS: 

nuisance  by  statute,  where  set  in  certain  waters,  83. 
in  channel  a  nuisance,  273. 
garbage  in  lake  injuring  fishing  nets,  276. 
for  fishing,  when  a  nuisance,  276. 
NEVADA : 

statute;  definition,  nuisance,  4,  note;  10,  note. 
NEWSPAPERS: 

where  stand  for  sale  of,  in  street,  authorized  by  municipality,  78. 
NEW   Ymi;K: 

penal  code;  definition  public  nuisance,  7,  note. 
NEW  YORK  CITY: 

no  power  to  permit  storing  of  wagon  in  street.  227.  note, 
cannot  permit  encroachments  upon  streets,  233,  note, 
power  as  to  erection  of  booths  under  elevated  stairs,  260,  note. 
NEW  YORK  CITY  SUBWAY: 

construction  of,  244. 
NITROGLYCERINE : 

works,  locality  of,  16. 
dangerous  nuisances,  385. 
use  of,  in  blasting,  386. 

ordinance  of  village  as  to  storage,  386,  note, 
explosion  of,  in  gas  wells,  409. 
NOCUMENTUM,  3. 
NOISES: 

as  a  nuisance  generally,  174. 

physical  condition  causing  peculiar  susceptibility  to,  20. 

nuisance  occurring  seldom,  24. 

caused  by  elevated  railway,  69. 

from  ordinary  operation  of  railroad  not  ground  for  damages,  70. 

from  ordinary  use  of  railroad  not  a  public  nuisance,  70. 

(810) 


Index. 

(The  references  are  to  sections.) 

NOISES— Continued. 

in  construction  of  shaft  for  tunnel  authorized  by  statute,  71. 

from  operation  of  railroad,  75. 

though  business  lawful,  noises  from  may  be  a  nuisance,  99. 

from  cotton  gin  a  nuisance,  113. 

need  not  injure  health  to  be  a  nuisance,  174. 

use  of  speaking  trumpet  at  night,  175. 

from  sheet  and  iron  working  at  unreasonable  hours,  175. 

at  unreasonable  hours,  175. 

operation  of  factory  at  unreasonable  hours  in  residential  district,  175. 

caused  by  music  lessons,  176. 

particular  noises  as  a  nuisance,  176. 

from  steam  engine,  176. 

should  only  be  restrained  to  extent  of  nuisance  alleged,  176. 

from  business  of  gold  and  silver  beater,  176. 

from  stables,  176. 

caused  by  school  of  decorative  art,  176. 

from  electric  light  plant,  176. 

caused  by  cii-cus,  176. 

from  roller  coaster,  176. 

from  a  skating  rink,  170. 

where  maliciously  caused,  176. 

from  gas  plant,  176. 

disturbing  religious  services,  action  by  individual,  177. 

action  by  religious  society  for,  for  disturbing  services,  178. 

ringing  of  bells,  179. 

caused  by  steam  whistles,  180. 

caused  by  whistles,  may  be  a  nuisance,  180. 

from  whistles,  affecting  comfort  of  one's  home,  180. 

steam  whistles  not  a  nuisance  per  se,  180. 

power  of  municipality  to  prohibit  use  of  steam  whistles,  180. 

injury  of  health  by  steam  whistle,  180. 

anticipated  from  building  being  erected,  181. 

from  marble  cutting  and  polishing  works,  must  produce  substantial  injury 

to  be  a  nuisance,  182. 
must  produce  substantial  injury  to  be  a  nuisance,  182. 
test  is  effect  upon  ordinary  persons,   183. 
effect  of  locality,  184. 
from  coal  elevators,  184. 

from  conduct  of  business  in  manufacturing  locality,  184. 
where  business  legalized,  185. 
from  railroad  shops,   185. 

from  electric  light  plant,  where  legalized,  185. 
from  ear  barns,  186. 

where  location  not  designated  for  legalized  business,  186. 
where  nuisance  can  be  avoided,  187. 

(811) 


Index. 

(The  references  are  to  sections.) 

NOISES— Continued. 

where  from  corn  and  flouring  mill,  can  be  avoided,  187. 
from  livery  stable,  a  nuisance,  201. 
from  cattle  enclosures,  4,  note;  208. 
from  cattle  pens,  common  nuisance,  6,  note, 
bleating  of  calves  in  cattle  pens,  208. 
from  hen  house,  411. 
NOISES,  JARS  AND  VIBRATIONS: 
generally,  188. 

noise  as  a  nuisance  generally,  174. 
when  no  prescriptive  right  to  cause  noise,  57. 
noises  at  unreasonable  hours,  175. 
particular  noises  as  a  nuisance,  176. 
from  gas  plant,  170. 

disturbing  religious  exercises,  action  by  individual,  177. 

action  by  religious  society  for,  where  services  disturbed,  178. 

ringing  of  bells,  179. 

steam  whistles,  180. 

anticipated  nuisance,  erection  of  building,  181. 

when  business  of  steam  laundry  will  not  be  enjoined  on  account  of,  182. 

must  produce  substantia]  injury.   lvJ. 

test  is  the  effect  upon  ordinary  persons,  183. 

effect  of  locality.  L84. 

in  making  excavations  for  electric  light  plant,  185. 

where  business  legalized,  1S.">. 

from  operation  of  railroad,  where  legalized,   185. 

from  electric  light  plant,  18.5. 

where  location  not  designated  for  legalized  business,  186. 

where  nuisance  can  be  avoided,  187. 

from  machinery,  187,  188. 

where  jars  and  vibrations  not  substantial,  188. 

from  engine  used  to  propel  cars  by  cable,  188. 

from  operation  of  steam  hammer,  188. 

vibration  from  brewery  pumps,  188. 

from  steam  engine,  1S8. 

distinction  between   nuisances   affecting  air   and   those  affecting  land  or 
structures,   189. 

where   nuisance   claimed    from    jar    and    vibration,   defendant   may   show 
injury  due  to  other  cause,  190. 

damages  recoverable,  191. 

See  Noises. 
NOISOME  SMELLS: 

when  a  nuisance  generally,  157. 

instances  when  smells  a  nuisance,  158. 

when  not  a  public  nuisance,  159. 

from  smelter,  when  no  prescriptive  right  to  cause,  57. 

(812) 


Index. 

(Tne  references  are  to  sections.) 
NOISOME  SMELLS— Continued, 
from  business  or  trade,  157. 
pleading  in  action  for,  157. 
evidence  in  actions  for,  157. 
affecting  occupation  of  dwelling,  157. 
from  business,  that  unavoidable  no  defense,  157. 
from  stagnant  water  caused  by  dam,  158. 
from  drippings  into  sewer,  158. 
from  garbage  plant,  158. 
from  elevated  railways,  69,  158. 
from  rendering  and  fat  boiling  establishments,  158. 
from  slaughterhouses,  158. 

injury  must  be  real  in  case  of  a  slaughterhouse,  162. 
from  use  of  oil  as  a  fuel,  158. 
from  brick  burning,   158. 
smelting  works,  158. 

caused  by  stagnant  water  on  railroad  right  of  way,  158 
from  cooking  of  offal,  158. 
fertilizer  factory,  158. 
from  cotton  null,  158. 
refuse  from  canning  factory,  158. 
from  a  dump,  158. 
from  privy,  158. 

when  smells  from  a  slaughterhouse  not  a  public  nuisance    159 
from  creamery,  l.~>7. 

causing  refuse  from  creamery  to  flow  onto  another's  la-.d    160 
from  cream,,,-,  though  public  nuisance,  individual  may  sue,  168 
from  obstruction  of  natural  drain  of  surface  waters    160 
where  caused  to  arise  from  another's  land,  160 
from  throwing  filth  on  another's  premises',  160 

TonfL ^Z  1  ^^  fertiHzer  laWfu1'  Smdl*  frora'  a  ™^nce,  "1. 
from  fertilizer  factory,  need  not  be  injurious  to  health,  166 

bough  business  of  tanning  lawful,  smells  from  a  nuisance,  161 

though  business  lawful,  immaterial,  161. 

injury  must  be  real,  162. 

effect  of  locality,  163. 

effect  upon  persons  of  ordinary  health  and  sensitiveness  the  test    163 

from  keeping  of  hens,  163,  411.  '       3' 

that  others  contribute  to  injury,  no  defense,  164 

no  liability  for  injury  caused  by  others,  164 

effect  of  locality,  165. 

from  garbage,  liability  of  municipality  for,  166. 

need  not  be  injurious  to  health,  166. 

question  of  reasonable  care  immaterial,  168 

individual  may  sue  though  nuisance  a  public  one,  168 

liability  of  municipality,  169. 

(813) 


Index. 

(The  references  are  to  sections.) 
NOISOME  SMELLS— Continued. 

measure  of  damages  where  nuisance  public,  170. 

measure  of  damages,  170. 

caused  by  refuse  from  creamery,  measure  of  damages  for,  170. 

measure  of  damages  for  odors  from  garbage,  170. 

measure  of  damages  for  smells  from,  170. 

act  authorizing  board  of  health  to  abate  public  nuisances  construed,  171. 

injunction  order  construed,  172. 

where  evidence  conflicting,  case  of  appeal,  173. 

from  livery  stable  a  nuisance,  201. 

from  private  stable,  204. 

from  cattle  enclosures,  208. 

from  cattle  pens,  9,  note;  208. 

from  piggeries,  208. 

from  cattle  cars,  209. 

from  stock  yards,  209. 

See  Gases,  Noxious  Smells,  Odobs. 
NOMINAL  DAMAGES,  498. 

may  be  recovered  when  legal  right  invaded,  22. 
pollution  of  water,  329. 

See  Damages. 
NORTH  DAKOTA: 

codes;  definition  nuisance,  4,  note;   10,  note, 
code;  definition  public  nuisance,  7,  note. 
NOTICE : 

to  remove  encroachments  on  highway,  264,  note, 
gr  request  to  abate  nuisance,  455-458. 
unnecessary  ordinance  violated,  455,  note. 

service  of,  by  health  commissioner,  not  sufficiently  shown,  455,  note, 
service  on  rent  collector  insufficient,  455. 
of  suit;  condition  precedent,  455,  note. 
NOXIOUS: 

term  includes  what,  2,  note. 
NOXIOUS  GASES: 

or  vapors;  essentials  of  .injury,  22. 

See  Gases. 
NOXIOUS  SMELLS: 

when  no  prescriptive  right  by  gas  plant  to  cause,  57. 

though  not  injuring  health,  one  creating  liable  to  indictment  for,  87. 

one  liable  for  nuisance  caused  by,  though  using  reasonable  care,  89. 

from  fat  and  bone  boiling  establishments,  116. 

from  fertilizer  factory.  118. 

See  Gases,  Noisome  Smells. 
NUIRE : 

term  nuisance  derived  from,  2,  note. 

(814) 


Index. 

(The  references  are  to  sections.) 

NUISANCE: 

precise  technical  definition  of,  impracticable,  1. 

difficult  to  define  degree  of,  1. 

a  question  of  compound  facts,  1. 

omission  to  perform  a  duty  may  be,  2. 

general  definition  of,  2. 

derived  from  nuire,  2,  note. 

Blackstone's  general  definition  of,  3. 

may  exist  though  all  done  is  lawful,  4. 

statutory  or  code  definition  of  nuisance,  4. 

public  or  common,  defined,  5. 

statutory  or  code  definition  of  public  nuisance,  7. 

actionable  nuisance  defined,  9,  note;  25. 

distinguished  from  trespass,  17. 

children  injured  attractive  nuisance,  18. 

negligence  distinguished  from,  18. 

a  question  of  degree,  19. 

question  of  degree,  22. 

acts  of  several  persons  may  constitute,  23. 

fundamental  governing  principles,  25,  et  seq. 

distinguished  from  purpresture,  60. 

of  character  not  discoverable  by  unassisted  senses,  299. 

in  highway. 

See  Highways. 
NUISANCES  PER  SE: 

sale  of  intoxicating  liquors  not,  if  licensed  71. 

classified,  16. 

definition  of,  12. 

susceptible  of  practical  definition,  1. 

not  every  annoyance  is,  16. 

trade  or  business,  16. 

business  not;  that  some  discomfort  produced  is  insufficient,  21. 

obstruction  of  highway  as,  12. 

bawdy  house,  79. 

dead  animal  not,  198,  411. 

livery  stable  not,  200. 

pigsty  close  to  dwelling,  208,  note. 

hatchway  leading  to  a  cellar  not,  231. 

fire  engine  not,  256. 

threshing  machine  not,  256. 

hitching  rack  in  highway  not,  258. 

making  speech  in  street  not,  258. 

discharge  of  sewage  upon  land  not,  284. 

mill  race  not,  :;is. 

gunpowder  and  other  explosives,  when  not,  384. 

gasoline  and  carbon  oil  in  tanks  not,  387. 

(815.) 


Index. 

(The  references  are  to  sections.) 
NUISANCE  PER  SE— Continued, 
storage  of  crude  oil  not,  387. 

pipes  for  transportation  of  dangerous  substances  not,  387. 
baseball  not,  390. 

burial  grounds,  private  or  public,  are  not,  393. 
cemeteries  are  not,  393. 
cooking  and  cooking  ranges  not,  394. 
gaming  house  is,  395. 

hospitals  and  pest  houses  are  not,  397. 

structures  generally,  403. 

privies  not,  405. 

gas  wells  not,  409. 

injunction  lies,  415,  416. 

railroad  siding  or  switch  is  not,  425. 
NULLUM  TEMPUS  OCCURRIT  REGI,  51. 

OCCUPANTS : 

remedy,  443. 
OCCUPATION  : 

not  a  nuisance  originally:  effect  of  development  of  locality,  54. 
See  Business. 

ODORS: 

from  factory,  19,  note. 

offensive,  averments  of  declaration,  40. 

character  of.  pollution  of  waters,  310. 

from  seaweed  left  in  harbor,  311. 

from  hen  houses  when  not  a  nuisance,  411. 

from  acid  work-,  remedy,  414. 

private  action:  public  nuisance,  436. 

See  Gases.  Noisome  Smells,  Sewerage,  Stenches. 
OFFAL: 

noisome  smells  from  cooking  of,  158 
from  distillery,  polluting  waters,  303. 
OFFENSES: 

obstruction  of  navigable  waters  not  offense  againsi   L'nited  States,  except, 
273. 

See  Indictment,  Public  Nuisance,  Remedies. 
OFFICERS: 

liability  of  officers  of  private  corporations,  452. 

See  Agents. 
OFFICIALS: 

of  borough,  when  indictable  for  neglect  to  abate  nuisance,  414. 
liability  of  officers  of  municipality,  444. 

See  Public  Officials. 
OHIO: 

statute;  definition  public  nuisance,  7,  note. 

(816) 


Index. 

(The  references  are  to  sections.) 

OIL: 

noisome  smells  from  use  of,  as  fuel,  158. 
OIL  PIPE: 

not  nuisance  because  insurance  rates  increased,  387. 
OIL  WELLS: 

injunction,  wlien  lies  against,  388. 

danger  to,  from  fire,  an  important  factor,  388. 
ONIONS : 

cooking  of.,  not  nuisance,  necessarily,  394. 
OPEN  AIR  DANCES: 

ordinance,  as  to.  construed,  339. 
ORCHESTRION: 

private  action,  public  nuisance,  426. 
ORDINANCE: 

validity  of,  obstruction  of  sidewalk,  4,  note. 

validity  of,  obstruction  sidewalk,  4,  note. 

validity  of,  5,  note. 

violated  in  keeping  explosives,  385. 

of  village  prohibiting  storage  of  dynamite  and  nitro-glycerine  except,  386. 
note. 

violation  of,  storage  of  petroleum,  387,  note. 

of  city  as  to  house  of  ill  fame,  391,  notes. 

as  to  keeping  bees,  392. 

making  bill  board  a  nuisance;  nevertheless  not  abatable,  403. 

of  village  void  declaring  public  picnics  and  dances  nuisances,  414. 

as  to  wooden  walls;  private  action,  public  nuisance,  435. 

violated,  when  no  notice  necessary,  455,  note. 
See  Municipality. 

ORE: 

waters  polluted  by  washing  ore,  277. 
ORNAMENTAL  PURPOSES: 

property  used  for,  26. 
OUTHOUSES.  405. 
OVERFLOW : 

ordinary  care  to  prevent,  44. 
OWNER : 

of  attractive  nuisance,  liability  for  negligence,  18. 

liability  of  owners  or  occupants  of  houses  in  district,  sewage,  301. 
See  Abutting  Owneb,  Landowner. 
OYSTER  HOUSE: 

in  river;  individual  to  abate  must  suffer  special  injury,  370,  note. 

PANTOMIME : 

offending  common  decency,  indictment,  414. 
PARADES : 

ordinance  requiring  permit  for,  construed,  337. 

(817) 


Index. 

(The  references  are  to  sections.) 

PARKS: 

as  factor  in  definition,  7. 

railroad  in  Golden  Gate  Park  a  purpresture,  61. 

railroads  in,  4,  note;  245. 

See  Ball  Pabk,  Public  Squares. 
PARLIAMENT : 

acts  authorized  by,  not  a  nuisance,  68. 
PARTIES  ENTITLED  TO  REMEDY,  421-446. 
private  action,  public  nuisance,  422-436. 
private  person   suffering  special   injury   may   sue,   public   nuisance,    422. 

423,  424,  425. 
suit  by  private  person,  not  for  himself  alone,  422,  note, 
title  unnecessary  to  enable  private  person  to  sue.  422,  note, 
private  person,  public  nuisance;   injury  must  differ  in  kind  and  degree, 

423,  424,  425. 
vested  right  obstructed  is  sufficient  special  injury,  423,  note, 
private  injury,  public  nuisance,  cause  and  effect,  423. 
private  person  specially  injured  by  obstruction  of  view,  424. 
heirs,  etc.,  specially  injured  by  obstruction  of  access  to  burial  lot,  424. 
private  injury,  public  nuisance;   review  of  decisions,  424,  425. 
individual  may  have  redress  though   nuisance  affects   several   alike.  424, 

425. 
private  injury,  public  nuisance:   equity   power.  424.  41~>. 
legislature  may  designate  who  may  sue.  420. 
Wesson  v.  Washburn;  private  person,  public  injury.  427. 
private  action,  public  nuisance;  others  similarly  affected,  428. 
private  person  need  not  be  sole  sufferer.  428,  note, 
though  many  persons  affected  each   one   injured  lias  private  action.  42S, 

note, 
private  action,  public  nuisance;   special   private   injur)    must  be  Bhown; 

pleading,  429. 
what  essentials  must  exist  to  sustain  private  action;  public  nuisance,  430. 
private  action,  public  nuisance;   highways,  431. 
private  action,  public  nuisance;   sewage,  431. 
private  action,  public  nuisance;  navigable  waters,  433. 
private  action,  public  nuisance;  bridges,  434. 
private  action,  public  nuisance;   wooden  walls  or  buildings,  435. 
private  action,  public  nuisance;    instances,  436. 
State  or  public  entitled  to  remedy;   Attorney-General  or  other  prosecuting 

officer,  437,  438. 
municipal  and  quasi  municipal  corporations  entitled  to  remedy;   English 

local  authorities,  439. 
boards  of  health  entitled  to  remedy:   sanitary  inspector,  440. 
corporations  entitled  to  remedy.  442. 
landowner,  landlord,  mortgagor,   riparian  owners;   joinder;   remedy,  443. 

(818) 


Index. 

(The  references  are  to  sections.) 

PARTIES  ENTITLED  TO  REMEDY— Continued. 

necessity  of  interest  in  land ;  parties  in  possession,  444. 

lessee  or  tenant  entitled  to  remedy;  joinder,  445. 

other  persons  entitled  to  remedy;  joinder,  44G. 

See  Action,   Injunction,  Remedies. 
PARTIES  LIABLE,  447-475. 

person  creating  nuisance,  447. 

municipal  and  quasi  municipal  corporations,  448. 

special  injury  by  sewage  deposits,  city  liable,  431. 

officers  of  municipal,  etc.,  corporations,  449. 

private  corporations,  450,  451. 

officers  of  private  corporations, 

owners  generally,  453. 

creator    of    nuisance    and    subsequent    holder    by    purchase    or-  descent, 
continuance  of   nuisance,   454,   455. 

grantee  or  purchaser  of  creator  of  nuisance;  notice  to  abate,  454-458. 

creator,  etc.,   of  nuisance,  notice  or   request   to  abate,   455-458. 

liability  for  continuing  nuisance;   statute  of  limitations,   459,  4G0. 

landlord    and    tenant;    distinction    to    be   observed,    461. 

when  owner   or   landlord  liable  to  third   persons,   402,  403,  4G6. 

landlords'   liability;    defective,   etc.,   condition   of   premises,   4(i3. 

lessor  of  structure  or  building  for  public  entertainment,  liable,     464. 

lessee    who    sublets,    405. 

landlord    to    tenant,   407. 

tenant,  468. 

landlord   and   tenant,  obligation  to  repair,   470,   471. 

whether  owner,  occupant,  contractor  or  subcontractor  liable,  472. 

immoral    and    illegal    use   of    property,    who    liable,    473. 

jointly   and   severally  contributing,  474. 

out  of   jurisdiction   need   not   be   made   defendants,   474,   note. 

liable,  common  scold,  475. 

■other  persons  who  are  and  are   not  liable,  475. 

See  Action,  Injunction,  Remedies. 
PARTNERS: 

when  need  not  be  joined  in  suit,  446. 
PENAL  CODE: 

See    Code. 
PENAL  STATUTE: 

See  Statute. 
PENALTY : 

where  penalty  provided  by,  for  car  standing  at  crossing,  248,  note. 

under  statute  not  recoverable  by  injunction,  414,  note. 
See   Statute. 
PENDENTE  LITE: 

discontinuance  of  action,  493. 

(819) 


Index. 

(The  references  are  to  sections.) 

PERCOLATIONS: 

from    reservoir,    382. 

pulluting   water,   382. 

of  oil   may  cause   nuisance,    387. 
PERMANENT   INJURY: 

Depreciation   in  value  —  Damages,  489. 

See   Injury. 

nuisance,   24. 

nuisance  —  damages,   494,    495,    496. 
"PERMANENT    OBSTRUCTION:'' 

of   highways   construed,    215. 
PERMIT: 

See  Excavations,  License.  Municipalitt. 
PER  SE  NUISANCE: 

See  Nuisance  per  se. 
PERSON: 

or  property  must  sustain  substantial   injury,   22. 

acts  of   several    may    constitute   nuisance,    23. 
PEST  HOUSE   4.   note;   397. 

abandonment  cf,   397,   note. 
PETROLEUM: 

dangerous    nuisances,    387. 

percolations  of,  may  create  nuisance,  387. 

See  Crude  Oil,   Oil. 
PHYSICAL   INJURY: 

not  necessarily  meant  by   "  hurt  or   annoyance,"   409. 
PIANO: 

Used  in  saloon  at  night,  409. 
PICNICS: 

ordinance  as  to  construed,   339. 

See  Public  Picnics. 
PIERS,    275. 

in  public  river,  5,  note. 

recognition  by  state  of  right  to  construct,  65. 

on  street  authorized  by  municipality.  79. 

in   navigable   waters;    private   action,   433. 

Sec  Waters,  Wharves. 
PIGGERIES: 

immaterial  that  they  are  kept  as  clean  as  possible,  208. 

as  a  nuisance  generally,  208. 

close  to  dwelling  a  nuisance  per  se,  208,  note. 
PIG  PENS: 

See  Piggeries. 
PIGS: 

See  Piggeries. 


(820) 


Index. 

(The  references  are  to  sections.) 
PIGSTYS: 

polluting  city's  water  supply,  304. 

See  Piggeries. 
PIPE   CONDUCTORS: 

leading  to  sidewalk,  237. 
PIPES : 

for    transportation    of   dangerous   substances,    387. 
PIT: 

digging  on  own  land;   sic  utere,  etc.,  30. 
PLACER  MINING  i 

See  Mining. 
PLANK   ROAD: 

authorized  by  State,  effect  of  extension  of  city  limits,  67. 
PLATFORM: 

scale,   erection   of  in   highway,   218,   note. 

use  of  for  loading  or  unloading  goods,  226. 

from   second    story    of    building    for    loading    and    unloading    goods    not 

a  nuisance  per  se,  233. 
projecting    from    second    story   of    building,    municipality   not    liable    for 

permitting  it  to  remain,  264,  note, 
in  alley  not  nuisance,  403. 
PLAYHOUSES: 

not  nuisances  in  their  nature,  115. 

See  Theatre,  Theatrical  Manager. 
PLEADING : 

when   subject   to   demurrer;    damnum   absque   injuria,    32. 

averments  of  declaration,  offensive  odors,  40. 

sufficiency  of  allegation  in  action  for  nuisance  caused  by  cotton  gin,  113. 

what    bill    in    proceeding    to    enjoin    fat    or    bone    boiling    establishment 

should  state,  116. 
in  action  for  noisome  smells,   157. 

proper  defendants  in  action   for  nuisance  by  livery  stable,   201. 
what  complaint  must  show  in  action  by  individual   for  nuisance  affected 

in  highway,  218,  note, 
sufficiency  of   in   action   by   individual   for   obstructing   highway,   219. 
allegation   of   negligence   in    construction   of   bridge,    274. 
allegation    that    defendant    caused    unhealthy    pond    of    standing    water 

when  insufficient,  305. 
what  petition  should  allege  in  action  against  city  for  a  nuisance,  53,  note, 
effect  of  prayer  for  relief,  364. 

bare   allegation   that   cemetery  a  nuisance,   insufficient,   393. 
private   person,   public   nuisance;    averments   necessary,   425. 
general    issue;    private    person,    public    nuisance,   425. 
special  private  injury  must  be  shown ;  private  action,  special  injury,  429. 
allegation  of  ownership  does  not  necessitate  proof  of  title,  444,  note. 

(821) 


I.N'bkX. 
i Tin-  are  to  sections.) 

PLE  \M  v; Continued. 

striking  out  "Mayor  and   councilmen "   in    private   suit,  44f'.,   note. 

damages,  general  decisions,  .'504. 
POLES: 

for  telegraph,  telephone  and  electric  light,  may  be   placed  on  highway, 
2 1 2. 

for  Hags,  254. 

for  telephone,   telegraph   or  electric  light,   not  a   nuisance,  258. 

for   telephone  wires  a   nuisance  at  common  law,  258,   note. 

for  electric  light  wires,  right,  of  individual  as  to  removal  of,  378. 
POLK  i 

liability  of  chief  of,  449. 
POLICE    AMBULANCE  STABLE: 

duly  if  municipality  as  to  maintaining,  201,  note, 
POLICE   POWER: 

of  Btate  to  abate   nuisance  which   pollutes  water  supply,  304. 

ailing  up  l«»\\    land,  362. 

Bui ary   abatement,   proper  exercise  of,  380,  note. 

id'    stale    a^    to    dangerous    oils.    : 5 S 7 .    note. 

See      S  l  vi  I    una       \  I   ISA 

POLITICAL  C  \MI'  HON: 

fireworks,  1 18. 
POLLUTION    OF  STREAMS: 

vVatebs. 
POND: 

when     a     nuisance,    when     not,     305 

not  nuisance,  per  si',  305. 

See  ii  i    Pond,  Waters. 
POOL: 

nuisance,  Removal   A«t   includes,  4. 

of    stagnant     water.    305. 
PORTABLE   ENGINE: 

near  highway   not    necessarily    ;i  nuisance,  256. 
PORTO   RICO: 

penal   cod.';    definition   public  nuisance,  7,  note. 
VOW  DEB    IHH  SE: 

streel    railway,  9,  note. 

of  streel  railway,  private  nuisance,  9,  note. 
POWDER    HOUSES 

locality  oi.   16. 

See    Powdkb    Magazine. 
TOW  DEB    M  \i;A/1NK.    I,    note. 

dangerous  nuisances,  383,  384,  :>S5. 
wilfully  blown  up  by  stranger,  385. 
PREMISES: 

defective,   dangerous,   etc,   condition  of,  463. 

(822) 


Index. 

(The   references  are  to  sections.) 

PRESCRIPTION: 
act,  English,  36. 

See  Statutes. 
light  and  air,  36. 
deposits  of  mining  debris,  277. 
waters,  328. 
dams,  328. 

See  Prescriptive  Right. 
PRESCRIPTIVE  RIGHT,  50-58. 
none  to  public  nuisance,  50. 

mill  dam  a  public  nuisance,  no  prescriptive  right  to  maintain,  50. 
none  to  public  nuisance,  50. 

none  as  to  public  nuisance,  reasons  for  rule,  51. 
none  to  create  nuisance   by    collecting  wagons  in   highway,   52. 
none  to  maintain   nuisance   in   highway,   52. 
none  to  maintain   nuisance  in   highway,  52. 
none  to  overflow  highways,  52. 
to  maintain   vault  under  sidewalk,    52. 
none  to  pollute  a  stream,  53. 

cannot  be  acquired  to  maintain   a  slaughter  house,  54. 
none  where  trade  or  occupation  a  public  nuisance,  54. 
burden  of  showing,  55. 
title  by  a  mere  pesumption  of  law,  55. 

elements  essential    to   right   to   maintain   private  nuisance,  55. 
to  maintain   private  nuisance,  55. 
essential  elements  to,  55,  56. 
when  none  to  in  case  of  smoke,  50. 

claim  must  have  been  continued  in  substantially  the  same  way,  56. 
when   it  begins  to  run,  56. 
when  not  presumed,  f>U. 

when  none  to  deposit  bark  from  tannery  in  a  stream,  57. 
where  none  to  carry  on  a  trade  or  business,  57. 
when  none  to  maintain  brick   kilns,  57. 
when  none  in  case  of  noise  and  vibration,  57. 
when  none  by  gas  plant  to  emit  noxious  gases,  57. 
when  none   in   case  of  fumes  from   smelter,  57. 
when  none  by  railroad  to  maintain  culvert,  57. 
when  none  as  to  machinery  in  mills,  57. 
delay  as  evidence  of  acquiescence,  58. 
mere  delay  not  sufficient  acquiescence,  58. 
to  maintain   closed  drain,   306. 
PRINCIPAL  AND  AGENT: 

See  Agent. 
PRIVATE  ACTION: 

See  Remedies. 

(823) 


Index. 

(The  references  are  to  sections.) 

PRIVATE   NUISANCES: 

Massachusetts  statute,  4,  note, 
defined,   8,   11. 

not  necessarily   founded  upon   using.   8,  note. 
affects  one  or  more  as  private  citizens,  8,  note. 
Blackstone's   definition,   9. 
instances  of,  9,  note, 
statutory   or   code  definitions,    10. 

difficult  to   determine  whether   nuisance   is   public  or   private,   13. 
distinguished   from    public    nuisance,    13. 
distinction   between,    and    public    nuisance,    13,    14,    notes, 
extent  of  difference  between,  and  public  nuisance,  14. 
test  of,  14,  note. 

may  also  be  public,  13,  note;  14,  note, 
action  lies  where  legal  right  invaded,  39. 
prescriptive  right  to  maintain,  55. 
baseball  games,  39. 
may  also  be  pvblic  one,  424. 
PRIVATE  REMEDY: 

special  injury  to  individual. 

See  Highways,  Remedies. 
PRIVATE  ROAD: 

noisome  smells  to  those  passing  along,  159. 
PRIVATE  WAY: 

obstructed,  4,  note. 
right  of  way,  408. 
PRIVY,  405,  406. 

nuisance,  Removal  Act  includes,  4. 
action  on  case,  34. 
noisome  smells  from,  158. 
disease  germs  polluting  water,  283. 
sewage  discharged  into  street,  302. 
polluting  city's  water  supply,  304. 
located  on  open  drain,  306. 
percolations,  314. 
when  nuisance  per  se,  314. 

for  school  house;   municipal  liability  for,  356. 
from  public  schools;  pollution  of  stream,  406. 
See  Water  Closets. 
PRIVY  VAULTS: 

nuisance  by  statute  in  populous  districts,  83. 
PRIZE  FIGHT,  409. 
PROCESSIONS: 

ordinance  requiring  permit  for,  construed,  337. 
PROFANITY: 

as  public  nuisance,  414. 

(824) 


Index. 

(The  references  are  to  sections.) 
PROHIBITION,  WRIT  OF: 

See  Writ. 
PROOF: 

See  Evidence. 
PROPERTY: 

enjoyment  of,  caused  by  nuisance,  2,  note. 

what  must  be  shown  to  make  out  case  of  special  injury  to,  2,  note. 

value  of,  impaired;  proof  of  damages,  2,  note. 

as  element  in  definition  of  nuisance,  4,  5,  7. 

injuriously  affected;  obstruction  of  street,  4,  note. 

unlawful,  etc.,  use  of,  as  public  nuisance,  5,  note. 

injury  to  use  and  enjoyment  of,  is  nuisance,  11. 

enjoyment  of,  rendered  uncomfortable,  19. 

sold  thereafter  for  as  large  a  sum  as  before,  22. 

must  sustain  tangible  injury,  22. 

value  of,  must  be  substantially  impaired,  22. 

in  order  to  restrain  improvement  of,  must  be  real,  sensible  injury,  22. 

used  for  ornamental  purposes,  26. 

injury  to,  when  a  nuisance,  26. 

right  to  have  it  protected,  26. 

rights  generally;  luxuries;  delicate  nature  of  property,  26. 

sic  utere  tuo  ut  alienum  non  laedas,  27. 

control  of  use  of,  under  maxim  sic  utere,  etc.,  28. 

natural  rights  to  use  of  and  artificial  use,  30. 

convenient  or  beneficial  use  of,  30. 

right  to  reasonably  improve  it,  31. 

acts  on  own  land  done  under  lawful  authority,  32. 

right  to  make  reasonable  use  of,  32. 

lawful  or  unauthorized,  reasonable  or  unreasonable  use  of,  33,  34,  35. 

impairment  of  or  diminution  in  value  of,  40. 

can  not  be  so  used  as  to  injure  others,  54. 

owner  specially  injured  by  deposits  of  mining  debris,  277. 

riparian  rights  as,  and  compensation  for  use,  329.   (Appendix  A.). 

decrease  in  rental  or  salable  value,  388. 

depreciation  in  value  of,  from  cemetery,  393. 

See  Land. 
PROPERTY  RIGHTS: 

generally,  luxuries;  delicate  nature  of  property,  26 
PROSPECT:  J 

easement  of,  36,  37. 
PROSPECTIVE  DAMAGES: 

See  Damages. 
PROSTITUTION: 

houses  of,  are  public  nuisances,  391,  note, 
houses  of;  private  action,  public  nuisance,  436. 
immoral  use  of  property,  473. 

See  Bawdy  House,  House  of  III  Repute. 

(825) 


Index. 

(The  references  are  to  sections.) 

PROXIMATE  CAUSE: 
explosion,  385. 
acts  of  third  parties;  other  sources  of  causes;  others  contributing.  476. 

PUBLIC: 

right  of,  in  highway,  212. 

right  to  abate;  relief  in  equity;  perils  and  liabilities,  416. 
injunction  in  behalf  of;   essentials  of;  remedy,  416. 
denned  in  action  to  abate,  438,  note, 
benefit  to;  balancing  conveniences,  483,  484. 
PUBLIC  BODIES: 

disposal  of  sewage,  284,  285,  286. 
generally;  pollution  of  waters;  sewage,  288. 

disposal  of  sewage;   statutory  powers;   when  a  nuisance,  when  not,  289, 
290,  291. 

See  Sewerage. 
PUBLIC  BUILDINGS: 

where  erection  of,  authorized,  70. 
PUBLIC  COMMON : 

appropriation  of,  by  individual  a   purpresture,  66,  note. 
PUBLIC  ENTER!" A I X  M  E X  T : 

liability  of  lessor  of  building  for,  4H4. 
PUBLIC  HEALTH  ACT: 

of  England,  155,  291,  307,  311,  note;  397,  406. 
PUBLIC  LANDS: 

nuisances  affecting,  213. 

when  enclosure  of,  will  not  be  enjoined.  213. 

construction  of  round  house  and  turntable  on,  a  public  nuisance,  249. 
power  of  Congress  to  order  abatement  of  nuisance  on,  373. 
private  action,  public  nuisance,  426. 
PUBLIC  NUISANCE: 
defined,  5,  note. 

Hawkins'  and  Blackstone's  definition  of,  6. 
two  kinds,  15., 
instance,  6,  note, 
essentials  of,  generally.  5,  note, 
need  not  be  injurious  to  health.  5,  note, 
exists  where  there  arc  offensive  smells,  5,  note, 
covers  violation  of  public  statute.  5,  note. 
an  offense  against  State,  5,  note. 

injury  of  rights  to  navigate  is  public  nuisance,  5,  note- 
unlawful,  etc.,  use  of  property  as  factor,  5,  note, 
may  consist  of  acts  of  omission  of  duty,  5,  note, 
may  consist  of  direct  encroachment  on  rights,  5,  note, 
obstruction  of  street  is,  4,  note, 
test  of,  5,  14,  note. 

(826) 


Index. 

(The   references  are  to  sections.) 

PUBLIC  NUISANCE— Continued. 

affected  by  location  and  surroundings,  15,  16. 

motive  or  intent  in  filing  bill  against,  43. 

no  prescriptive  right  to  maintain,  50. 

milldam  as;  no  prescriptive  right  to  maintain,  50. 

no  prescriptive  right  to  use  stream  so  as  to  create,  50. 

length  of  time  maintained  will  not  prevent  abatement  of,  50. 

distinguished  from  private  nuisance,   13. 

difficult  to  determine  whether  nuisance  is  public  or  private,  13. 

may  also  be  private,  13,  note;   14,  note. 

distinction  between,  and  private  nuisance,  13,  14,  note. 

extent  of  difference  between  it  and  private  nuisance,  14. 

may  be  a  private  nuisance  as  to  redress,   14. 

no  prescriptive  right  to  pollute  stream  so  as  to  create,  53. 

dam  not  where  authorized,  G7. 

dam  obstructing  fish,  276. 

act  authorized  by  law  not,  67. 

internal  improvements  authorized  by  State,  not,  67. 

State  cannot  prosecute  as  nuisance  act  authorized  by  it,  67. 

when  elevated  railway  not,  69. 

when  railroad  and  use  of  steam  not,  70. 

use  of  highway  by  individual  not,  where  authorized,  70. 

deposits  upon  land  of  mining  debris;  navigation  impeded,  277. 

canal,  where  authorized,  not,  71. 

canals,  306. 

hog  pens  and  stables  befouling  water,  311. 

indecent  conduct.  5,  note. 

to  urinate  in  spring,  311. 

gunpowder,  etc.,  384-3S6. 

when  storage  of  crude  oil  is  not,  387. 

baseball  games,  390. 

bawdy  house,  391. 

vacant  lots  covered  with  refuse  and  filth,  396. 

when  thickly  inhabited  tenement  house  is;  contagious  diseases,  397. 

liquor  nuisance  as,  399-401. 

exhibiting  stud  horses  414. 

relief  in  equity  to  private  individual,  416. 

private  action,  422-436. 

private  action  lies,  5,  note. 

legislature  may  designate  when  may  sue,  426. 

obstruction  of  access  to  burial  lot,  424. 

may  also  be  private  one,  424. 

annoys  community  generally  and  not  some  particular  person,  5,  note. 

if  annoys  part  of  public,  5,  note. 

one  that  injures  citizens  generally,  5,  note. 

(827) 


ISDEX. 

(The  references  are  to  sections.) 

PUBLIC  NUISANCE— Continued. 

injury  to  neighborhood  generally,  5,  note, 
great  number  of  persons  affected  the  same  way,  424. 
number  who  suffer  not  test  of,  14. 
all  citizens  need  not  be  injured,  5,  note, 
equity  has  jurisdiction,  424. 
power  of  equity  as  to,  2,  note. 

what  essentials  must  exist  to  sustain  private  action,  430. 
private  action;  sewage,  431. 
private  action ;  highways,  431. 
private  action;  navigable  waters,  433. 
private  action;  bridges,  434. 
private  action ;  wooden  walls  or  buildings,  435. 
See  Remedies. 

PUBLIC  OFFICIALS: 

See  Officials. 

PUBLIC  PARK: 

railroad  in,  4,  note. 
PUBLIC  PICNICS: 

and  dances,  not  nuisances,  414. 
ordinances  void  declaring  them  nuisances,  414. 
PUBLIC  PROPERTY: 

nuisances  affecting,  213. 
PUBLIC  SQUARE: 

hitching  racks  erected  on,  79. 
nuisances  affecting,  213. 

enclosure  of  school  lands  a  public  nuisance,  213. 
jail  and  cesspool  on,  a  nuisance,  213. 
building  erected  on,  a  public  nuisance,  233. 
PUBLIC  WORKS: 

municipal  liability  for,  355,  356. 

municipality  not  authorized  to  create  nuisance  in  construction  of,  285. 
See  Sewerage. 
PULP  MILL: 

explosion  of  digester  in,  385. 
PUMPING  STATION: 
when  a  nuisance,  85. 

liabiltiy  of  municipality  for,  where  location  not  designated,  356. 
PUMPS: 

jars  and  vibrations  from,  188. 
PUNITIVE  DAMAGES,  503. 

for  willful  obstruction  of  highway,  259. 

See  Damages. 
PURCHASER: 

from  erector  of  nuisance;   notice  to  abate,  456-458. 

(S2S) 


IXDEX. 

(The  references  are  to  sections.) 

PURPRESTURES,  59-66. 
definition  of,  59. 
defined,  59,  note, 
distinguished  from  nuisance,  60. 
not  necessarily  a  nuisance,  60. 
in  some  cases  held  a  nuisance  per  se,  60. 
injunction  against  obstruction  not  a  public  nuisance,  60. 
when  railroad  in  street  not,  61. 
in  case  of  a  street  or  highway,  61. 
building  encroaching  on  street  one,  61. 
market  place  on  street  as,  61. 

what  amounts  to  one  in  case  of  street  or  highway,  61. 
municipality  can  not  authorize,  61. 
fence  as,  61. 
in  case  of  parks,  61. 

rights  of  riparian  owners  at  common  law  62. 
building  on  bed  of  lake  as,  63. 

in  Michigan  as  to  rights  to  soil  under  navigable  waters,  64. 
rights  to  lands  under;   Federal  courts  follow  decisions  of  State  courts,  64. 
legislature   cannot   authorize   municipality   to   make    that   a   purpresture 

which  is  not  one,  64. 
when  wharf  not  one,  64. 
right  of  riparian  owner  to  build  beyond  low  water  mark,  65. 

right  of  riparian  owner  to  build  wharf,  65. 

application  of  term  to  wharf  upon  shore  of  navigable  stream,  65. 

wharves  must  not  interfere  with  navigation,  65. 

jus  publicum  in  soil  under  water,  66. 

rule  in  England  as  to  right  to  construct  wharf,  66. 

right  of  riparian  owner  of  access  to  navigable  part  of  stream,  65. 

jus  privatum  of  king  in  soil  under  water,  66. 

against  whom  may  be  committed,  66. 

may  be  abated  by  crown,  66. 

abatement  of  in  case  of  judgment  on  an  information  of  intrusion,  66. 

owner  of  shore  may  abate,  66. 

not  necessarily  a  nuisance,  66. 

abatement  and  removal  of,  66. 

interference  with  jus  publicum  a  nuisance,  66. 

may  be  restrained  at  suit  of  attorney  general,  66. 

result  of  a  decree  in  equity,  66. 

inquiry  directed  upon  decree  in  equity,  66. 

interference  with  jus  privatum  one,  66. 

appropriation  of  public  common  by  individual,  66,  note. 

municipality  may  maintain  bill  to  restrain,  66,  note, 
court  of  chancery  may  restrain,  66. 
jurisdiction  of  court  of  chanceiy  in  cases  of,  66. 

(820) 


Index. 

(The  references  are  to  sections.) 

QUARRY: 

in  working  on,  must  not  cause  injury  to  another,  124. 

use  of  proper  precautions  no  defense  where  nuisance  caused,  124. 
QUASI  MUNICIPAL: 

bodies,  liability  of  generally,  278. 

corporation  constructing  ditch  overflowing  land,  279. 

bodies;   disposal  of  sewage,  284,  285,  286. 

See  Municipal,  Municipality. 
QUO  WARRANTO: 

proceedings,  power  of  State  as  to  bridge,  274. 

RAFT: 

stopped  by  bridge  over  navigable  waters;  private  action,  434. 
RAGS: 

board  of  health  may  require  them  to  be  disinfected,  83, 
RAILROAD: 

in  public  park.  4,  note. 

saloons  alongside  of,  4,  note. 

in  Golden  Gate  park  a  purpresture,  61. 

when  not  a  purpresture  in  street,  61. 

as  to  injuries  from  construction,  (if  where  legalized,  70. 

construction  of,  damnum   absque  injuria,  70. 

not  liable  for  noise,  smoke  or  vapors  from  ordinary  operation  of.  70. 

wliere  legalized  not  a  public  nuisance.  70. 

duty  of,  as  to  stockyards,  71,  note. 

though  authorized  by  statute  may  lie  liable  for  nuisance,  72. 

maintenance  of  coal  chute  by,  75. 

legalized  nuisances;  construction  of  turntable,   75. 

ringing  of  bells  in  operation  of,  7"i. 

use  of  locomotives  by,  75. 

must  not  exercise  powers  negligently,  75. 

duty  of  as  to  land  in  city  acquired  for  terminal  purposes,  75,  note. 

where  statute  permissive   for   location  of  cattle   yards,   7G. 

where  no  locality  designated  for  construction  of  roundhouse,  76. 

construction  of  coal  sheds  by,  7<i.  note. 

in  street  though  legalized  must  not  exceed  rights  granted,  78. 

statute  requiring  ditches  by  side  of  railroad  are  constitutional,  82. 

blasting  in  excavation  for.  not  a   nuisance,   108. 

smoke  from  opening  in  tunnel,  147. 

noises  from  operation  of  shops,  185. 

noise  and  vibration  from  where  legalized,  185. 

dead  animal  on  railroad  right  of  way,  199. 

duty  in  use  of  streets  for,  242. 

where  use  of  highway  by,  legalized,  242.  243,  244. 

operating  street  car  line  by  cable  under  authority  to  operate  by  horses, 
242,  note. 

(S30) 


Index. 

(The  references  are  to  sections.) 

RAILROAD— Contiihied. 

evidence  showing  use  of  highway  for  wras  authorized  by  municipality,  242, 
note. 

where  tracks  not  laid  in  center  of  street  as  authorized,  242,  note. 

departure  in  detail  in  construction  of  street  railway,  242,  note. 

duty  in  construction  of,  in  streets,  243. 

in  parks,  245. 

a  public  nuisance  in  highways  where  unauthorized,  246. 

unauthorized  in  highways;   individual  specially  injured  may  sue.  246. 

unauthorized  construction  of  in  highways,  246. 

municipality  may  remove  where  constructed  in  street  without  authority, 
246,  note. 

horse  railroad  track  in  highway,  246,  note. 

side  tracks  and  switches  in  highway,  247. 

elevated  railroad  switch  in  highway,  247.  note. 

rights  of  public  where  railroad  crosses  street,  248. 

unreasonable  use  of  highway  by,  248. 

cars  standing  at  crossings  or  in  streets,  248. 

where  statute  provides  penalty  for  car  standing  at  crossing,  248,  note. 

use  by,  of  highway  for  switching  cars,  Ji1.). 

use  of  streets  for  loading  and  unloading  cars,  249. 

construction  by,  of  roundhouse  and  turntable  on  public  lands  a  public- 
nuisance,  249. 

use  by,  of  highway  for  terminal  purposes,  249. 

abutments  and  bridges  for,  in  highway,  250. 

if  authorized  in  highway  are  not  a  nuisance,  250,  note. 

effect  of  authority  to  highway  commissioners  to  permit  extension  of 
tracks,  250,  note. 

accumulation  of  snow-  cleared  from  street  railway  tracks,  251. 

use  of  salt  on  street  railway  tracks,  251. 

horses  frightened  by  implements  unloading  freight,  255. 

gates  at  a  crossing  not  a  nuisance,  258. 

damages  for  unlawful  operation  of,  in  highways,  259. 

damages  for,  in  highway  not  limited  to  nomianl,  259,  note. 

municipality  can  not  legalize  construction  of,  in  street,  261. 

municipality  no  power  to  declare  enclosure  of  tracks  of,  a  nuisance,  262. 

right  of  municipality  to  prohibit  use  of  locomotives  in  streets,  263. 

embankment,  surface  waters,  315. 

erections,  317. 

validity  of  ordinance  as  to  speed  of  trains,  339. 

abatement  where  nuisance  consists  in  use  of  tracks,  378. 

use  of  horses  for  street  railway  where  franchise  only  for  cable,  378. 

location  of  dangerous  nuisance  near  to,  388. 

terminal  yard  not  enjoined,  411. 

siding  or  switch  is  not  per  se  a  nuisance,  425. 

(831) 


Index. 

(The  references  are  to  sections.) 

RAILROAD — Continued. 

siding  or  switch;   private  person,  public  nuisance,  remedy,  425. 

side  tracks  at  station  essential  part  of  road,  425,  note. 

abuse  of  use  of;   private  action,  436. 

tracks  wrongfully  constructed;   private  action,  436. 

cars  obtsructing  street;  private  action;  public  nuisance,  436. 

company,  maintenance  of  dam,  322. 

See  Elevated  Railway,  Elevated  Railway  Location. 
RAILROAD  BRIDGE: 

reasonably  necessary  for  ordinary  contingencies,  274. 

across  navigable  waters;  private  action,  434. 

RAILWAY: 

See  Railboad. 

RANGES: 

for  cooking;   stoves,  394. 
RECURRING  NUISANCE: 

remedies,  24,  415,  416. 

liability,  454,  460. 

damages,  494,  495,  596. 
REFUSE : 

and  filth  deposited  on  land,  396. 
RELIGIOUS  SERVICES: 

action  by  individual  for  noises  disturbing,  177. 

action  by  religious  society  for  noises  disturbing,  178. 
RELIGIOUS  WORSHIP: 

action  for  disturbing,  442. 
REMEDIES: 

public  or  private,  neglect  of  action,  4,  note. 

private  action  lies  for  public  nuisance,  o,  note. 

distinction  between  public  and  private  nuisance,  14. 

public  nuisance  may  be  subject  of  private  redress,  14. 

general  nature  and  character  of  nuisance  as  affecting  remedy,  24. 

law  knows  no  distinction  of  classes,  12. 

municipality  may  maintain  bill  to  restrain  purpresture,  66,  note. 

of  individual  where  specially  injured  by  wharf,  275. 

of  county  against  deposits  of  mining  debri-,  277. 

liability  of  municipal   and  quasi-municipal   bodies   generally;   negligence, 
officers  and  agents,  278. 

drainage  district,  when  not  liable  in  private  suit,  279. 

ditch  overflowing  land;   negligence,  279. 

non-liability  of  grantor  for  sewer  nuisance,  280. 

sewer  negligently  constructed  and  operated,  282. 

of  State  board  of  health;  pollution  of  city  water  supply,  304. 

person  suffering  special  damage  from  stagnant  pools,  305. 
filling  up  and  draining  land,  305. 

(832) 


Index. 

(The  references  are  to  sections.) 

REMEDIES— Continued. 

nature  and  form  of,  generally,  359-3G4. 

ancient  or  common  law  remedies,  360. 

assize  of  nuisance  and  quod  permittat  prosternere,  360,  note. 

debt,  nuisance,  ejectment,  case,  trespass,  361. 

statutes,  362. 

election  of,  362,  364. 

law  and  equity,  363. 

effect  of  prayer  for  relief,  364. 

by  indictment  and  in  equity,  statutes,  365-367. 

subject  matter;   dangerous  nuisances  generally,  382. 

negligence  of  contractor,  unguarded  machinery,  382. 

when  employer  not  liable  for  unguarded  machinery,  382. 

owner  not  liable  to  trespassers,  382. 

subject  matter,  explosion,  383. 

dangerous  nuisances;   negligence,  383. 

subject   matter  of;   gunpowder,  etc.,  384-386. 

owner  of  property  not  liable  to  lessee's  employee;  explosion,  385. 

subject  matter  of,  fireworks,  385. 

powder  magazine  willfully  blown  up  by  stranger,  385. 

explosion  of  gunpowder  in  consignee's  hands,  386,  note. 

dangerous  nuisances;   petroleum,  gasoline,  naphtha,  crude  oils  etc.,  387, 

388. 
dangerous  nuisances;   spring  guns,  389. 
baseball  games;  ball  park,  390. 
bawdy  house,  or  house  of  ill  repute,  391. 
deposits  of  land,  garbage,  ashes,  offensive,  etc.,  matter,  396. 
hospitals;   pest-houses;   infectious  and  contagious  diseases,  397. 
liquor  nuisance;   civil  and  criminal  actions  or  remedies,  399-401. 
common  scold,  402. 

fences  and  structures  generally,  403,  404. 
water  closets,  privies,  vaults  and  outhouses,  405,  406. 
civil  and  criminal;   dams,  407. 
private  way;   right  of  way,  408. 

other  special  instances  of  subject  matter  of,  409,  410. 
other  special  instances  of  what  is  not  subject  matter  of,  411,  412. 
other  special  instances  of  when  and  for  what  indictment  lies,  413,  414. 
essentials  of  equitable  jurisdiction,  remedy  or  relief,  415,  416. 
of  private  individual  in  equity  for  public  nuisance,  416. 
drain  or  channel  diverting  waters,  416. 
in  equity  where  waters  of  creek  fouled,  416. 

who  entitled  to;  against  whom  remedy  lies;  preliminary  statement,  421. 
private  person;   public  nuisance,  422-436. 
private  injury  must  differ  in  kind  and  degree;  public  nuisance,  423,  424, 

425. 

(833) 


Index. 

(The  references  are  to  sections.) 

REMEDIES— Continued. 

legislature  may  designate  who  may  sue,  426. 

action  legal  or  equitable  or  both;   suit  by  State  or  public,  437,  438. 

State   or   public  entitled  to;   Attorney  General   or  other    prosecuting  of- 
ficer, 437,  438. 

municipal    and   quasi-municipal    corporations    entitled    to;   English    local 
authorities,  439. 

board  of  health  entitled  to,  440. 

aqueduct  board  entitled  to,  441. 

corporations  entitled,  442 

landowner  entitled  to;    landlord;    mortgagor;    riparian    owners;    joinder, 
443. 

parties  entitled  to;   necessity  of  interest  in  land;   parties   in   possession, 
444. 

or  lessee  or  tenant;   joinder,  445. 

other  persons  entitled  to  remedy;   joinder,  446. 

persons  creating  nuisance  liable;   general  rule,  447. 

liability  of  officers  of  municipal,  etc.,  corporations,  449. 
liability  of  private  corporations,  450,  451. 

liability  of  officers  of  private  corporations,  4.V2. 

liability  of  owners  generally  453. 

liability  of  erector  of  nuisance  and  subsequent  holder  by  purchase  or  de- 
scent;  continuance  of  nuisance,  454,  455. 

grantee  or  purchaser  of  erector  of  nuisance;   notice  to  abate,  454-458. 

notice  or  request  to  abate.  455-458. 

liability  for  continuing  nuisance;    statute  of  limitations,  459,  400. 

liability;  landlord  and  tenant;   distinction  to  be  observed,  461. 

when  owner  or  landlord  liable  to  third  persons,  462,  463,  4(iti. 

liability  of  landlord;   defective,  etc.,  condition  of  premises,  463. 

lessor  of  structure  or  building  for  public  entertainment;   liability,  464. 

liability  of  lessee  who  sublets,  465. 

liability  of  landlord  to  tenant.  467. 

liability  of  tenant,  468. 

liability  where  term  of  lease  is  nine  hundred  and  ninety-nine  years,  469. 

landlord  and  tenant;   obligation  to  repair,  470,  471. 

whether  owner,  occupant  or  sub-contractor  or  contractor  liable.  472. 

immoral,  illegal  and  unlawful  use  of  property;   who  liable,  473. 

parties  jointly  and  severall  contributing,  474. 

other  persons  who  are  and  are  not  liable,  475. 
See  Actions,   Defenses,   Equity.    Indictment,    Injunction,   Municipality, 

Pakties. 
RENDERING: 

establishments,  noisome  smells  from,   158. 
RENTAL: 

diminished;   fence  maliciously  erected,  404. 

(834) 


Index. 

(The  references  are  to  sections.) 

RENTAL  VALUE: 

damages,  490-492. 

life  tenant;   additional  damages,  502. 

injury  to  by  excavations  in  highway,  230. 
See  Damages. 
REPAIRS: 

See  Landlord. 
REPAIR  SHOPS: 

construction  of,  at  end  of  alley,  causing  injury  to  individual,  222. 
REPUTATION: 

of  animal  for  viciousness,   192,  note. 
REQUEST: 

to  abate  nuisance,  455-458. 
RESERVOIR: 

nuisance  caused  in  construction  of,  74. 

when  not  a  nuisance,  277. 

of  water  works  company  fouled,  288. 

putrid   water  in,  mill   owners,   303. 

for  city  water  supply,  pollution  of,  304. 
RESIDENCE : 

See  Dwelling. 
RHODE   ISLAND   STATUTE: 

definition   nuisance,   4,   note. 
RIGHT  OF  WAY: 

See  Private  Way. 
RIPARIAN   OWNERS: 

rights  of   at  common   law,   62. 

rights   of  generally,   64. 

right  of  access  to  navigable  part  of  stream,  65. 

right  to  build  wharf  in  navigable  waters,  65. 

right  to  build  wharf,  65. 

remedy;    parties,   443. 

See  Waters. 
RIPARIAN  RIGHTS: 

See  Waters. 
RIVERS: 

river  pollution  prevention  act,  298. 

See  Navigable  Waters. 
ROCK   CRUSHING  MACHINE: 

effect  of  ordinance  as  to,  334. 
ROCKETS: 

discharge  of  on  street  a  nuisance,  258. 
ROLLER  COASTER: 

noises  from,  176. 
ROOFS: 

municipality  may  prohibit  maintenance  of  wires  on,  339. 


(835) 


Ikdex. 

(The  references  are  to  sections.) 

ROUNDHOUSES: 

where  locality  not  designated  for  construction  of,  76. 
construction  of  at  end  of  alley  causing  injury  to  individual,  222. 
See  Raileoads. 

SAFETY: 

as  factor  in  definition  of  nuisance,  4. 
SALE: 

of  property  for  as  large  sums  as  before  nuisance,  22. 
SALOONS: 

along  railway  line,  4,  note. 

connected  with  bridge,  439. 

See  Liquor  Nuisance. 
SALT: 

spreading  of  on  car  tracks  a  nuisance,  217. 

use  of  on  street  railway  tracks,   251. 
SALVATION  ARMY: 

ordinance  prohibiting  marching  in  streets  by  construed,  337. 
SAND   PILES: 

uncovered  near  residences,  409. 
SANITARY  INSPECTOR: 

may  sue,  440. 
SANITATION: 

purifying  sewage  297,  298. 
SAWDUST: 

from  mills  deposited  in  water,  303. 
SCAFFOLDING: 

overhanging  sidewalk  not  necessarily  a  nuisance,  258. 
SCALES : 

erection  of  platform  scale  in  highway,  218,  note. 
SCHOOL  HOUSE: 

municipal  liability  for  nuisance  caused  by  privy  vault  of,  356. 

when   municipality  not   liable  for  defects  in,   356. 
SCHOOL  LANDS: 

enclosure  of  a  public  nuisance,  213. 

enclosed,  remedy,  404. 
SCHOOL  OF  DECORATIVE  ART: 

noises  caused  by,  176. 
SCIENTIFIC: 

examination  as  compared  with  visible,  actual  injury,  22. 

conclusions  of  secondary  importance  to  facts,  22. 
evidence.     See  Evidence. 
SCOLD : 

common  scold  liable,  475. 
SCREENS : 

obstructing  view,  37. 


(836)1 


Index. 

(The  references  are  to  sections.) 

SEAWEED: 

as  nuisance,  311. 
SECRETARY  OF  WAR: 

approval  as  to  bridge,  274. 
SELECTMEN: 

of  town  may  have  injunction,  439. 
SEPARATE  OWNERS: 

joinder,  443. 
SERVANT: 

indictment  for  punishing,  414. 

See  Contractor,  Employees,  Employer. 
SEVERAL  OWNERS: 

joinder  in  suit,  443. 
SEVERAL  PERSONS: 

acts  of  may  constitute  nuisance,   23. 
SEWAGE  DISPOSAL  WORKS: 

measure  of  damages  for  smells  from,   170. 
eSEWERAGE : 

taking  stream  for  assessment  of  damages,  278. 

disposal  of,   283. 

disposal  of;   municipalities,  etc.,   284,  285,  286. 

discharge  into  tidal  waters,  285. 

disposal  of,  application  of  rule  as  to,  286. 

municipal  liability:  distinction  between  plan  and  construction,  mainten- 
ance or  use,  287. 

pollution  of  waters:  public  bodies  generally,  English  decisions,  288. 

disposal  of;  statutory  authority;  where  and  when  not  a  nuisance,  289, 
290,  291. 

municipality  acquiring  land  beyond  its  limits  for  sewage  system,  293. 

discharged  beyond  jurisdiction,  294. 

statutory  condition  precedent ;  sewer  obstructing  navigable  waters,  295. 

act  creating  nuisance  absolutely  necessary  to  execute  statutory  power, 
296. 

pollution  of  waters  by  sewage  or  otherwise;  purifying,  disinfecting  and 
deodorizing,   297,  298. 

purification  of,  Chicago  drainage  case,  299. 

Chicago  drainage  case;  nuisance  of  a  character  nor  discoverable  by 
unassisted  senses,  299. 

overtaxing  capacity  of  sewer  or  stream,  overflow,  300. 

liability  of  owners  or  occupants  of  houses  in  district,  301. 

discharged   into   street,   302. 

from  glucose  facory  in  stream,  303. 

deposited    in   pond,   305. 

escape  of  drainage  into  cellar,  306. 

legislature  may  act  through  own  agencies;  creation  of  sewerage  district; 
independent  sources  of  pollution;  when  nuisance  does  and  does  not 
exist,  308. 

(837) 


Index. 

(The  references  are  to  sections.) 

SEWERAGE— Continued. 

expert  evidence  as  to  pollution  and  its  effect,  309. 

character  of  odors  as  a  factor,  310. 

interference  by  city  with  riparian  rights,  32!),  Appendix  A. 

deposited  on  land,  396. 

pollution  of  waters  by,  injunction,  410. 

fouling  waters  of  creek;   equitable  remedy,  416. 

private  action,  public  nuisance,  431. 

pollution  of  waters  by;   liability  of  supervisors,  449,  note. 

city  liable  though   other  sources   responsible,  477,  note. 

used   by   city,   4,   note. 
SEWERS: 

generally,  280. 

negligently  constructed  a  nuisance,   44. 

sulphuretted  hydrogen   gas   from:    contributory   negligence,   45. 

no  prescriptive  right  to  empty   into  stream,  53. 

where  statute  authorizes  taking  of  land  for,  69,  note. 

if  legalized  not  a  nuisance,  71. 

must  not  cause  injury  to  others  in  construction  of,  74. 

where  hxai ion  of  not  designated,  76. 

duty  of   municipality   in    maintenance   of,   80. 

eminent  domain.  278. 

negligent  construction  of  by  city,  279. 

power  of  city  to  assess  for  new  one,  280. 

constructed  by  private  person,  280. 

gases  emitted  from  manholes  in  sewers,  280. 

left  in  unfinished  state,  281. 

negligently   constructed   and  operated.    282. 

negligently  constructed,   283. 

location  and  general  plan  of,  non-interference  of  courts,  285. 

limitation    of    distance   at   which   it   empties    into   source    of    city   water 
supply,    304. 

whore  city  grants  permit  to  dump  refuse  into  manhole  of.  353. 

municipal  liability  for  nuisance  caused  by,   355. 

percolations  of  oil  into,  387. 

from   cemeteries   pulluting   stream    may    be   enjoined.    393. 

tidal  sewer  and  tidal  chamber  for  collecting  sewage ;  remedy,  439. 

outfall  into  sea  city  indictable,  448. 
SHANTY: 

below  high  water  mark  a  nuisance.  273. 
SHAVINGS: 

smoke  from  burning  of,   143. 
SHED: 

not  nuisance,  403. 
SHEEP: 

where  they  communicate  disease   to  other   cattle,   193. 

where  infectiously  diseased  and  turned   into  pasture,    193. 

(838) 


Index. 

(The  references  are  to  sections.) 
SHOOTIXG  GALLERY: 

not  a  public  nuisance,   125. 
private  action,  public  nuisance,  426 
SHOWCASE: 

right  to  maintain  in  front  of  store,  105. 

injury  to  individual  by  falling  of ; 'liability  of  municipality    227 
placing  of  on  sidewalk,  227. 
SHRUBBERY: 

destroyed  by  pollution  of  waters,  277 
SICKNESS: 

Massachusetts'  statute,  4,  note. 

sic  utere  tuo  ut  alienum  non  laedas,  27  et  seq.,  75,  99,  161. 

definition  of  nuisance  with  reference  to  maxim,  2,  note,  11. 

control  of  use  of  property,  28. 

maxim  to  be  applied  with  caution,  28. 

natural  right  to  use  of  property  and  right  to  artificial  use,  30 

maxim   to  be   limited,   32. 

maxim  not  of  universal  application,  33. 

smoke,  137. 

See  Maxims. 
SIDE  TRACKS: 

in   highway,   247. 
SIDEWALK: 

in  city ;  obstruction  of  a  public  nuisance,  4,  note. 

validity  of  ordinance  as  to  obstruction  of,  4,  note. 

obstruction  of,  4,  note. 

openings  in.  411,  466. 

openings  in  authorized  by  municipality,  78. 

where   obstruction  of  authorized   by  municipality,   78. 

where  booth  on  for  sale  of  newspapers  authorized,   78. 

placing  of  showcases  on,  227. 

duty   of   person   maintaining   vaults   and   excavations   in     ?31 

openmg  in  for  light  and  ventilation  not  a  nuisance,  231 

coal  holes  in,  231. 

coal  holes  in  not  a  nuisance  if  properly  constructed  and  covered,  231. 

vaults  and  excavations  under,   231. 

openings  in,  231. 

effect  of  license  to  make  coal  hole,  vaults  or  excavations  in,  232. 
steps  to  a  building  a  nuisance,  233. 
barn  close  to  a  nuisance,  233. 
pipe  conductors  leading  to,  237. 
overhanging  eaves,  237. 
fruit  stand  on,  258. 
bill  board  on  a  nuisance,  258. 

scaffolding  overhanging  not  necessarily  a  nuisance,   258. 
when  municipality  no  power  to  authorize  obstruction  of,  251. 
See  Btjildixgs,  Highway. 
(839) 


Index. 

(The  references  are  to  sections.) 

SIGHT: 

things  offensive  to  as  public  nuisance,  5,  note. 
SILK  DYEING: 

trade,  pollution  of  waters  to  injury  of,  304,  note. 
SILT: 

destruction  of  support  by  cutting  through  in  excavating  for  gas  plant,  76. 
SINGER: 

in   religious   service   not  liable,   475. 
SKATING  RINK: 

noises  from,   176. 
SKIDS : 

use   of   for   loading   or   unloading   goods,   226. 
SKILL: 

See  Negligence. 
SLABS: 

storage  of  in  highway,   227. 
SLAUGHTER  HOUSE,  16: 

no   defence   to    indictment    that    it   was    originally    remote    from    habita- 
tions, 54. 

where  erection  of  authorized  by  municipality,  7!». 

it  may  be  shown  that  they  be  so  conducted  as  not  to  be  a  nuisance,  1-ti. 

originally  regarded  as  nuisances  per  se,   12<i. 

prima  facie  a  nuisance,   126. 

persons  specially  injured  may  unite  in  asking  for  an  injunction,  127. 

will  not  be  enjoined  because  it  depreciates  value  of  property.  127. 

may  be  enjoined  before  established  a  nuisance  at  law,  127. 

nuisance  by  reason  of  location  or  operation,   127. 

when  erection  of  will  not  be  enjoined,   127. 

evidence  in  action  to  enjoin,  127. 

originally    remote    from    habitation — subsequent    development    of    local- 
ity, 128. 

niusance  though  health  not  endangered,   129. 

defense  to  indictment  for,   130. 

noisome  smells  from,  158. 

when  smells   from  not  a  public  nuisance,    159. 

injury  must  be  real  in  case  of  alleged  nuisance  caused  by  smells  from.  1 1 ". — . 

polluting   city's   water   supply,    304. 

on   banks  of   stream   flowing   through   city.    311. 

effect  of  ordinance  declaring  slaughter  house  a  nuisance,  334. 

ordinance  requiring  special  resolution  for  not  valid,  336. 

within  city  limits  may  be  prohibited  by  ordinance,  340. 

private  action,  public  nuisance,  426. 

selectmen  of  town  may  sue  in  equity  for  injunction,  439. 
SLIDING: 

on  highway  may  be  a  nuisance,  255,  258. 
SLOT  MACHINE: 

in  cigar  store,  409. 

(840) 


Index. 

(The  references  are  to  sections.) 
SMALL-POX : 

hospital  temporarily  erected,  397. 
child  infected,  carrying  it  along  street,,  397. 
SMELLS: 

noisome  smells  may  constitute  nuisance,  2,  note, 
from  cattle  pens,  4,  note. 

as  constituting  public  nuisance,  5,  note. 

from  fish  factory,  5,  note. 

offensive  to  senses  are  public  nuisance,  5,  note. 

from  cattle  pens;   common   nuisance,  6,  note. 

and  noise  from  cattle  pens,  9,  note. 

from   tannery  a  nuisance  though  business  lawful,   99. 
See  Gases,  Noisome  Smells.  Sewerage. 
SMELTER: 

fumes  from:   when  no  prescriptive  right  to  cause,  57. 
SMELTING  HOUSE: 

action  on  case,  34. 
SMELTING  WORKS: 

injury  to  vegetation  by,  132. 

noisome  smells  from,  158. 

nuisance  caused  by  fumes  and  gases  from,   132. 

measure  of  damages  for  smells  caused  by,  170. 
SMITH'S  FORGE: 

action  on  case,  34. 
SMOKE : 

when  action  for  not  barred  by  prescription,  57. 

from  ordinary  operation  of  railroad  not  ground  for  damages,  70. 

emission  of  declared  a  nuisance  by  act  of  Congress,  83. 

from  trade  or  business  a  nuisance,  85. 

from  trade  or  business;  no  defence  that  business  carefully  conducted,  89. 

stack,  where  nuisance  from,  can  be  avoided,  90. 

from  a  trade  or  business,  a  nuisance  by  reason  of  locality,  95. 

from  brick  kiln  as  a  nuisance,  111. 

from  coke  ovens,  a  nuisance,  112. 

from  operation  of  smelter,   132. 

from  operation  of  steel  furnaces,  133. 

when  a  nuisance  generally,   135. 

may  be  nuisance,  though  business  lawful,  135. 

in  action  for  need  not  show  that  business  was  carried  on  recklessly,  135. 

from  operation  of  iron  works,  135. 

evidence  in  action  for,  135. 

smoke  alone  not  a  niusance  at  common  law,  135. 

injunction  will    be  granted  where   subject   of   an   action   for   substantial 
damages,    135. 

emission  of,  from  smokestack  may  be  restrained,  135. 


(841) 


Index. 

(The  references  are  to  sections.) 

SMOKE — Continued. 

from    manufacturing    establishment    in    proximity    of    dwellings    may    be 

enjoined,  13C. 
right  of  individual  to  pure  air,  136. 
inconvenience  must  not  be  merely  fanciful.  137. 
smoke  not  a  nuisance  /><  r  se,  137. 
must  cause  annoyance  to  a  substantial  degree.   137. 
injury  to  ice  from  use  of  soft  coal;  injunction  refused,  137. 
to  be  a  nuisance  must  cause  tangible  and  appreciable  injury.  137. 
elements  essential  to  render  smoke  a  nuisance.   137. 
sic  utere  tue  ut  alienum  non  laedaa,  137. 

what  essential  to  justify  interposition  of  court   of  equity.    137. 
to  support  indictment  for.  need  not   injure  health.   I    • 
need  not  injure  health  under  English  Sanitary  Health  Act,  L866,  19,  138. 
need  not  be  injurious  to  health.  138. 

a  nuisance  where  it  causes  substantial  physical  discomfort,  138. 
need  not  be  special  damage  or  pecuniary  loss,   139. 
whether  nuisance  depends  on  locality.   140. 
discomforts  of  city  life,  140. 

manufacturing   establishments  an   element    in  city  life.    14<>. 
manner  of  using  the  property  an  element  to  be  considered,  140. 
nature  of  trade  an  element   to  be  considered.   140. 
locality  as  an  element  to  be  considered,  140. 
one   living    in  city   need   not   endure   substantial   annoyances   which   could 

be  avoided,   140. 
boundary  line  difficult  to  determine  in  populous  communities,  140. 
no  distinction  made  as  to  classes  <>i  persons,  141. 
that  others  contribute  no  defense,    14:2. 
from  operation  of  coke  ovens.  143. 
nuisance   by,   from  operation  of   mill,    143. 
from   running    planing   machine   and   circular   saw.    143. 
from  electric  light   plant.   143. 
particular   instance?   of   nuisance  by   smoke,   143. 
where  chimneys  are  built    low.    143. 

from  iron  work-:  purchase  of  premises  with  knowledge  of.  143. 
from  burning  pine  shavings.    143. 
dust  and  chaff  from  grain  threshing  machine,  143. 
causing    injury    to    ice.    143. 

from  blacksmith  shop  causing  injury  to  dwelling.   144. 
from  blacksmith  shop,    144. 
from  brick  kiln   injuring  health.   14.">. 
from   brick    kiln    injuring    trees.    145. 

from  lime  kiln   rendering  air  of  dwelling  unwholesome.   145. 
from  operation  of  brick  and  lime  kilns.  145. 
from   brick   kiln    polluting  air  of  dwelling.    145. 
where  occasional.  146. 
when  party  not  entitled  to  relief.  146. 

(S42) 


Index. 

(The  references  are  to  section.s.) 

SMOKE— Continued. 

when  injunction  not  granted  for  injury  to  ice,  14G. 

charter  to  carry  on  brick  kiln  does  not  authorize  smoke  nuisance,   147. 
from  coal  chute,   147. 
from   opening  in  railroad  tunnel,  147. 
from  distillery  legalized  by  city,  147. 
where    business    legalized,    147. 
from  smokestack  not  justified  by  license,  147. 
action   for  removal  of  smokestack,   148. 

statute  making  smoke  a  nuisance  not  invasion  of  judicial   province,  149. 
constitutionality  of  legislative  act  making,  smoke  a  nuisance,  149. 
when  statute  making  smoke  a  nuisance  not  a  special  law,  149. 
dense  opaque  smoke  a  nuisance  by  statute,   149. 

statute  making  smoke  a   nuisance  held  not   in  violation  of   14th  amend- 
ment   to   Federal   constitution,    149. 
power  of  municipality  to  regulate  emission  of,   150. 
ordinance  as  to  emission  of  dense  smoke,  150. 
power  of  municipality  to  pass  ordinance  as  to,   150. 
construction   of   particular  ordinances   as   to,    150. 
legislature  may  delegate  power  to  regulate  to  municipality,  150. 
words  "dense  smoke*'  construed,    L51. 
ordinance;  limiting  emission  of  smoke  from  a  chimney  to  "three  minutes 

in  any  hour''  construed,   152. 
ordinance   regulating   smoke    from   tugboats;    not   violation   of   commerce 

clause  of  constitution,   153. 
ordinance  as  to  smoking  in  street  ears,  154. 
sufficiency  of  notice  to  abate  under  English  Public  Health  Act,  155. 
damages   recoverable,    156. 
damages  for  injury  to  hotel  property,  150. 
SMOKE  AND  ODORS; 

private  action,   public  nuisance,   436. 
SMOKE  FUMES  AND  GASES,  135-156: 

Massachusetts'  statute  as  to  smoke,  4,  note, 
smoke   occurring   seldom,   24. 

smoke  nuisance  may  exist    where  material  discomfort  exists,  39. 
SMOKESTACK: 

when  license  for  does  not  justify  issuance  of  smoke,  147. 
where  nuisance  from,  can  be  avoided,  90. 
action  for  removal  of,  148. 
SMOKING: 

in  street  cars,  ordinance.  154. 
SNOW: 

from  roof  of  building,  falling  into  highway,  237. 
accumulation  of,  in  highway;  cleared  from  street  railway  tracks,  251. 
SOAP  BOILING  ESTABLISHMENT: 
in  city  a  nuisance,  96. 

(843) 


Index. 

(The  references  are  to  sections.) 

SOAP  FACTORY: 

ordinance  as  to  removal  of  construed,  335. 
SOFT   COAL: 

See  Smoke,   Fumes  and  Gases. 
SOIL: 

removing  soil  to  another's  injury,  27. 

washing  down  and  injuring  another,  33. 
SOLICITOR,   GENERAL: 

indictment  or  information  by,  413. 
SOUTH  DAKOTA: 

codes,  definition  nuisance,  4,  note;    10,  note. 

code;  definition  public  nuisance,  7,  note;  21. 
SOVEREIGN: 

at   common   law   sovereign   had   right   of   property  to  bed   of   navigable 
river,  62. 
SOVEREIGN    POWER: 

no  statute  of  limitations  against,  51. 
SPEAKING  TRUMPET: 

noises  by  use  of,  at  night,  175. 
SPECIAL  DAMAGE: 

recoverable,  13,  note. 

See  Damages. 
SPECIAL  INJURY: 

necessary  to  entitle  individual  to  sue  for  obstructing  highway,  218,  219. 

to  individual  in  case  of  highways,  220,  221. 

to  individual  from  building  encroaching  on  street,  234. 

to  individual  from  fence  encroaching  on  highway,  240. 

essential  to  right  of  individual  to  bate,  370. 

See  Highways,  Parties,  Remedies. 
SPEECHES: 

making  of,  in  street  not  a  nuisance  per  se,  258. 
SPRING: 

medicinal,    9,    note. 

urinating  in,  311. 
SPRING   GERMS: 

dangerous  nuisances,  389. 
SQUARE: 

as  factor  in  definition,  7. 

devoted  to  the  public;  nuisance  affecting,  213. 
STABLE  MANURE: 

deposited  on   land,   396. 
STABLES: 

noises  from,   176. 

use  of,   for   diseased   animals,   193. 

duty  of  municipality  as  to  police  ambulance  stable,  201,  note. 

for  private  purposes  not  a  nuisance  per  se,  204. 

where  nuisance  from  private  stable  consists  in  manner  it  is  kept,  204. 

(844) 


Index. 

(The  references  are  to  sections.) 

STABLES— Continued. 

though  in   violation   of  ordinance   as   to  building   line   not   nuisance   per 
se,  204,  note. 

proceeding   to  enjoin  erection   of,   205. 

statute  prohibiting  erection  of,  near  church  construed,  205. 

evidence  on  question  of,  as  a   nuisance,  207. 

construction   or  maintenance  of  as  affected  by  ordinance,  210. 

polluting  city's  water  supply,  304. 

on  banks  of  stream;    pollution  of  waters,   311. 

ordinance  as  to  cow  stable  construed,  335,  note. 
STAGNANT  WATER:     305. 

left  on  land,  ditch  negligently  constructed,  306. 

in  channel  of  stream,  412. 

private  action,  public  nuisance,  436. 
STAKES: 

driven   so  as  to  obstruct  navigation   a  nuisance,  273. 
STALLIONS: 

or  jacks;  standing  of,  2,  note;  6,  note. 

keeping  of,  ordinance  as  to,  5,  note. 

and  jacks,  9,  note. 

when  putting  to  mares,  a  nuisance,  196. 
STANDPIPE: 

when  not  a  nuisance,  403. 
STATE: 

public  nuisance  as  offense  against  order,  decency  and  economy  of,  5,  6,  7. 

not  affected  in  rights,  lapse  of  time,  50. 

has  title  to  land  under  navigable  waters,  63. 

matters    for    to    determine    rights    to    lands     under    tide    and    navigable 
waters,  64. 

recognition  by,  of  right  to  construct  wharves  and  piers,  65. 

cannot  prosecute  as  a  nuisance  act  authorized  by  it,  67. 

right  of   to  obstruct  navigation,   273. 

power  of  as  to  bridges  over  navigable  waters,  274. 

and   federal   law.      Chicago  drainage  case,   299. 

police  power  to  abate  nuisance  which  pollutes  water  supply,  304. 

power  as  to  dams  and  bridges,  326. 

entitled  to  remedy,  437. 

controversies   between.     Chicago   drainage   case,   299. 
STATION: 

See   Wooden    Station. 
STATIONARY  ENGINE : 

maintained  by  street   railway,   75,  note. 
STATUTE: 

nuisance  removal  act,  4. 

definition  of  nuisance,  4. 

Georgia  does  not  change  common  law  definition  nuisance,  4,  note. 

Illinois;    public  nuisances,    7,   note. 

(845), 


LSTDEX. 

(The  references  are  to  sections.) 

STATUTE— Continued. 

of  Indiana;  definitions,  4,  note;   10,  note. 

Maine;   definition  nuisance,  4,  and  note. 

Massachusetts;    definition   nuisance,   4.  note. 

Minnesota ;    definition  of  nuisance,  4,  note. 

Minnesota :    definition   public   nuisance,   7,  note. 

Nevada;   definition  nuisance,  4.  note:    10,  note. 

Ohio;   definition  public  nuisance,  7,  note. 

Rhode  Island;   definition  nuisance,  4,  note. 

South  Dakota;    definition.    10.   note. 

Utah;    definition    nuisance,   4,   note. 

Utah;   definition   public  nuisance,   7,  note. 

public  violation  is  public  nuisance,  5,  note. 

act  injurious  to  health  under  statute.  20. 

English   prescription  act;   light  and  air,  36. 

2  and  .3  Will.  IV.  c.  71,  30,  note. 

malicious  erection  of  structure.  43. 

legalizing  acts;   construction  of,  72. 

legalizing  acts  to  be  strictly  construed,  72. 

where  location  of  waterworks  not  designated  by.  76. 

where  permissive;  legalized  nuisance,  7<i. 

effect  of  mere  recognition  by  of  a  trade  or  business,  77. 

construction  of  penal   statute   prohibiting  certain   business,  81,  note. 

prohibiting  malicious  erection  of   structure  construed,   105. 

enjoining  erection   of  stable   near  church   construed.   20."). 

requiring  railroads  to  furnish  facilities  to  shippers  of  livestock  does  not 

relieve  from  liability  for  nuisance.  209. 
words  ''permanent  obstruction"  construed,  215. 
penalty  for  obstruction  of  highway-fences,  241. 
authorizing  construction  of  New  York  City  subway  construed,  244. 
an  obstruction  of  highway  a  defect  within  statute,  264. 
of  Idaho  as  to  dam  or  boom,  275,  note, 
against  obstruction  of  fish  in  rivers,  27<i. 
for   preservation  of  fish;    indictment,  276. 
injunction  against  board  of  water  commissioners,  278. 
appropriation  of  stream   for  sewerage;   assessment    of  damages,  278. 
power  under,  to  construct  sewers,  condemnation  of  land,  278. 
when  legislature  no  power   to  authorize  taking  land  for  sewage  without 

payment  of  damages,   278. 
authority  under,   disposal    of   sewage,   when   a    nuisance,   when   not,   289, 

290,   291. 
towns  improvement  clauses  act,  291. 
Leeds'    improvement   amendment   act,    291. 
lunatic  asylums  act,  291. 

English  public  health  act,  155.  291,  307,  311,  note;  397,  406. 
London    improvement   amendment    act,    291. 


(84G) 


Index. 

(The  references  are  to  sections.) 

STATUTE— Continued. 

distinction  between  nuisances  of  necessity  in  exercise  of  statutory  pow- 
ers and  those  from   secondary  causes,  292. 

condition   precedent,  sewer  obstructing  navigable  waters,  295. 

act  creating  nuisance  absolutely  necessary  to  execute  statutory  power,  296. 

authorizing  works  to  purify  sewage,  does  not  authorize  creation  of  nui- 
sance, 297. 

English  local  government  act,  amendment  act,  298. 

English  rivers  pollution  prevention  act,  298,  303. 

constitutional,  which  limits  distance  at  which  sewer  empties  into  source 
of  city  water  supply,  304. 

power   of  city   to   change   channel   of  water   course,   306. 

creating  sewerage   distinct,  308. 

as  to  slaughter  houses  on  banks  of  stream,  311. 

when    general    provisions    of,    as    to    abatement    does    not    control    local 
laws,  345. 

action  against  town  for  destruction  of  building  by  a  mob,  350. 

remedy   under,    362. 

remedy  by  indictment  and  in  equity,  365-367. 

as  to  removal   of  fences   by  commissioners   of   highways,   379. 

right  of  summary  abatement  as  affected  by,  379. 

authorizing  storage  of  crude  oil,  387. 

interments   of   dead,    393. 

location   of   cemetery,   393. 

restricting  use  of  stationery  engines,  398. 

as  to  remedy     for  liquor  nuisance,  399-401. 

as  to  Sunday   labor,   remedy,  411. 

penalty  under,  does  not  take  away  right  to  indictment,  413. 

punishing  act,  nevertheless   indictment  may  be  had,   414. 

remedy  under,  followed  equitable  relief  denied,  415,  not*. 

legislature  has  power  to  designate  persons  who  may  sue,  426. 

against  gaming  not  invalid  because  give  private  action,  426. 

dam  raised  in  violation  of;  private  action,  436. 

civil  action  by  district  attorney,  437. 

remedy  under,  only  to  "any  person  injured,"  439. 

authorizing  suit  in  equity  by  citizen  against  liquor  nuisance  is  constitu- 
tional, 446. 

when  corporation   cannot  be  prosecuted,  450,  note. 

constitutionality   of   jurisdiction,   450,   note. 

of  limitations,  459,  460. 

See  Code,  Congress,  Legalized  Nuisances. 
STATUTE  OF  LIMITATIONS: 

does  not  run  against  sovereign  power,  51. 

See  Prescriptive  Right. 
STATUTORY: 

or  code  definition  of  public  nuisance,  7. 

(847) 


INDEX. 

(The  references  are  to  sections.) 

STATUTORY  DEFINITIONS: 

private   nuisance,    10. 

See  Definitions. 
STATUTORY  NUISANCES: 

legislature  may  regulate  carrying  on  of  trade  or  business,  81. 

effect  of  statute  declaring  thing  a   nuisance,   81. 

power  of  legislature  to  declare  things  nuisance,  81. 

statute  prohibiting  certain  business  eonstiued,  81,  note. 

use  of  property  for  some  purposes  may  be  prohibited,  82. 

power  of  state  to  destroy  property.   v_' 

legislature  cannot  violate  constitutional  right  of  person  or  property,  82. 

act  providing  for  abatement  of  nuisance  not  a  forfeiture  of  property,  82. 

where  not  a  nuisance  in  fact,  82. 

constitutionality  of  acts  declaring  things  nuisances,  82. 

where  railroad  company  required  to  maintain  ditches  by  side  of  track,  82. 

bowling  alleys,  83. 

nets  in  certain  waters,  83. 

dam  without  a  fishway,   83. 

emission  of  ^moke,   83. 

privy  vaults  in  populous  districts,  83. 

fences,  83. 

power  of  Legislature  to  delegate  authority  to  municipality.  83. 

power  of  board  of  health  to  require  thta  rags  be  disinfected,  83. 

places  for  sale  of  intoxicating  liquors,  83. 

when   private   house   cannot   be   declared   such.    83. 

constitutionality  of  Legislative  act   making  smoke  a  nuisance,  149. 

- 1  a  1 1  n . 
STEAM : 

when  use  of  on  a  railroad  not  a  public  nuisance,  70. 

unauthorized  use  of  as  a  motive   power,  70,  note. 
STEAMBOAT  LINE: 

traffic    diverted    by    railroad,   40. 
STEAM  BOILERS: 

business  of  finishing  in  compact  part  of  city,  96. 

and  engines,  398. 
STEAM    ENGINES: 

permission  by  municipality  to  run,  79. 

noises  from,  176. 

vibrations  from,  188. 

and   boilers,    398. 
STEAM  HAMMER: 

vibrations    from   use  of,    188. 
STEAM  LAUNDRY: 

See  Laundry. 
STEAM  WHISTLES: 

power  of  municipality  to  prohibit  use  of,  180. 
blowing  of,  as  a  nuisance,   180. 

(848), 


Index. 

(The  references  are  to  sections.) 

STEEL  FURNACES: 

increase   of   annoyance   from,    133. 
STENCH: 

from   sewer   may   render   city   liable,   280. 

caused  by  sewage,  28G. 

from  pond,  305. 

process  preventing  escape  of,  310. 

See  Gases,  Noisome  Smells,  Sewerage. 
STEPS: 

of   a  building  encroaching  on   sidewalk   a   nuisance,   233. 

encroaching  on  highway;  when  individual  no  right  to  damages,  234. 
STOCK: 

waters   for  watering,   polluted  by  ore  washings,  277. 

stream  for  watering,   pollution   of,   393. 

barbed-wire  fence  dangerous  to,  404. 
STOCK  PENS,: 

See  Cattle,  Cattle  Pens,  Cattle  Yards. 
STOCKYARDS : 

where   railroad  authorized  to  maintain,   71. 

duty  of  railroads  as  to,  71,  note. 

measure  of  damages  for  nuisance  caused  by,  211. 
STONE: 

butts  or  heaps  of,  in  navigable  water,  273. 

STONE  COLUMNS: 

obstructing  view,  special  injury  to  private  person,  remedy,  424. 

STOREHOUSE : 

See  Floating  Storehouse. 
STOREKEEPER: 

obstruction  of  sidewalk  by  causing  special  injury  to  individual,  220. 

injury  to  by  loading  and  unloading  of  goods  on  adjoining  sidewalk,  223. 
STOVE: 

or  cooking  ranges,  394. 
STREAM : 

obstructing  running  stream,  2,  note. 

"  floatable  stream  "  obstructed,  2,  note. 

floatable  stream,  obstruction  of,  9,  note. 

non-prescriptive  right  to  use  so  as  to  create  a  public  nuisance,  50. 

no  prescriptive  right  to  pollute,  53. 

no  prescriptive  right  to  use  of  as  aewerway,  53. 

when  no  prescriptive  right  to  deposit  bark  from  tannery  in  a  stream,  57. 

pollution  of,  by  sewerage,  284,  285,  286. 

with  partly  subterranean  course  polluted  by  sewage,  286. 

polluted  by  sewage.  286. 

See  Navigable  Waters,  Waters. 

(849) 


Index. 

(The  references  are  to  sections.) 

STREET: 

purpresture  on,  61. 

building  encroaching  on  a  purpresture,  61. 
fence  on,  as  a  purpresture,  61. 
when  railroad  in  not  a  purpresture,  61. 

railroad  authorized  in,  must  not  exceed  rights  granted,  78. 
where  obstruction  of,  authorized  by  municipality,  78. 
railroad  in,  authorized  by  municipality,  78. 
where  awnings  authorized  by  municipality,  '< 
where  water  tanks  in  street  authorized  by  municipality,  79. 
where  pier  on,  authorized  by  municipality,  79. 
power  of  municipality  to  authorize  obstructions  in,  80. 
sewerage  discharged  into,  302. 
exhibiting  stud  horse  in,  indictment,  414. 
abutting  owner  on;    private  person;   public  nuisance,  424. 
See  Highway. 
STREET  CARS: 

ordinance  as  to  smoking  in.    154. 
STREET  RAILWAY: 

power  house,  private  nuisance,  9,  note, 
not  a  nuisance  where  authorized,  70. 

See  Highways,  Railroads. 
STRIKERS: 

patrol  of;   private  action;   publicj  nuisance,  436. 
STRUCTURES: 

generally,  403,  404. 

depriving  one  of  light,  air  and  view.  :>7. 

motive  or  intent  in  erecting,  43. 

encroaching  on  bed  of  lake,  63. 

in  street;   where  authorized  by  municipality,  78. 

statute  prohibiting  malicious  erection  of  construed,  105. 

distinction  between  nuisances  affecting  air  and  those  affecting  structures, 

189. 
proceeding  to  enjoin  erection  of,  for  a  stable,  205. 
power  of  municipality  as  to  erection  of,  341-344. 
right  of  municipality  to  destroy,  349,  350,  351. 
an  alley,  404. 

See  Buildings. 
STUD  HORSE: 

exhibited  in  street;  indictment,  414. 
SUB-COXTRACTOR : 

contractor,  owner,  etc.,  liability,  472. 
SUBWAY: 

construction  of,  in  New  York  city,  244. 
SULPHUR: 

impregnating  with  acid  spirits  of,  indictment,  414. 

(850) 


Index. 

(The  references  are  to  sections.) 

SULPHURETTED  HYDROGEN  GAS: 

from  sewer;   negligence,  45. 
SULPHUROUS  GAS: 

causing  irritation  of  throats  and  injuring  vegetation,  138. 
SUMMARY  ABATEMENT: 

by  board  of  health;   notice  a  prerequisite,  331,  note. 

proper  authorities  may  remove  fences  from  highway,  239. 

power  of  municipality  as  to,  345. 

by  municipality,  345-352. 

power  of  municipality  to  destroy  trees  in  highway,  253. 

liability  of  municipality  for  failure  to  abate,  357,  358. 

qualification  of  right  of  individual,  368. 

right  of  individual  to  abate  generally,  368. 

right  to  abate  give3  no  right  to  appropriate  property,  369. 

individual  must  act  in  peaceable  manner,  369. 

that  thing  was  and  may  be  a  nuisance  does  not  justify,  369. 

by  individual  ;   where  attempt  resisted,  369. 

special  injury  essential  to  right  of  individual,  370. 

of  dock  by  an  individual  there  must  be  special  injury  370,  note. 

right  of  individual  in  case  of  oyster  house  in  tidal  river,  370,  note. 

by  municipality    371. 

of  telephone  pole  by  individual,  371. 

destruction  of  dam  by  individual,  371. 

of  toll  house  by  individual,  371. 

of  bridge  by  individual,  371. 

where  dwelling  house  nuisance  individual  may  abate,  371. 

instances  of  right  by  individual  to  abate,  371. 

dock  may  be  abated  by  individual,  371. 

in  case  of  intoxicating  liquors,  372. 

by  municipality;   building  used  as  a  brewery,  372. 

destruction  of  fishing  nets  set  in  violation  of  statute,  372. 

by  municipality  of  pollution  of  water  supply,  372. 

construction  of  English  public  health  act  of  1891,  372,  note. 

by  an  urban  district  council,  372,  note. 

nuisance  on  public  lands;   power  of  Congress  to  order,  373. 

right  of  individual  in  case  of  private  nuisance,  373-378. 

entry  by  individual  to  abate  private  nuisance  justifiable,  374. 

what  essential  to  right  of  individual  to  abate  private  nuisance.  374. 

right  of,  by  private  individual  may  be  barred  by  limitations,  374. 

by  private  individual  does  not  bar  action  for  damages,  374. 

by  individual  does  not  bar  action  for  damages,  374. 
damages  not  mitigated  by  failure  to  exercise  right  of,  374. 

by  individual  of  embankment  affecting  flowage  of  water  in  natural  chan- 
nels, 375. 
when  individual  may  exercise  right,   375. 

of  nuisance  consisting  of  refluent  water,  375. 

(S51) 


Index. 

(The  references  are  to  sections.) 

SUMMARY  ABATEMENT— Continued. 

exercise  of  right  by  individual  in  ease  of  a  dam,  375. 

to  protect  property  from  injury  by  moving  building,  375. 

where  branches  overhang  premises,  375. 

individual   need  not  proceed  in  manner  most   convenient  to  other   party, 

376. 
individual  must  not  inflict  unnecessary  injury.  376. 
individual  acts  at  his  peril,  376. 
limitations  on  right  of  individual,  376. 
individual  must  use  reasonable  care  in,  376. 
by  individual  in  case  of  buildings,  377. 

that  building  used  for  house  of  ill  fame  does  justify  destruction  of,  377. 
when  restoration  of  structure  may  be  enforced,  ;i77. 
by  individual  of  nuisance  caused  by  pollution  of  pond,  378. 
by  individual  of  boat  house,  375. 
by  individual  of  mill  dam,  378. 
instances  of,  by  individual,  378. 

right  of  individual  in  case  of  electric  light  pole*.  378. 
use  of  horses  by  street  railway  under  franchise  to  use  cable,  378. 
of  private  railroad,  378. 

by  individual  of  nuisance  caused  by  drain.  :!7 s. 
where  nuisance  consists  in  use  of  railroad  tracks,  37*. 
statute  as  to  removal  of  fences  by  commissioners  of  highways,  379. 
right  of,  as  affected  by  statute,  379. 

right  not  affected  by  constitutional   provisions  as  to  protection  of  prop- 
erty, 380. 
proper  exercise  of  the  police  power.  3S0,  note, 
costs  of,  381. 

See  Abatemet,  Municipality. 
SUNDAY : 

noises  disturbing  religious  services,  177,  178. 
SUNDAY  BALL  GAMES,  390. 
SUNDAY  BARBERING: 

not  indictable.  414. 
SUNDAY  LABOR: 

remedy  not  civil  but  criminal,  411. 
SUNSTROKE : 

causing  susceptibility  to  noise,  20. 
SUPERVISORS: 

liability  of;   pollution  of  waters  by  sewage,  449,  note. 
See  Board  of. 
SURFACE  WATERS,  315,  316. 

noisome  smells  by  obstruction  of  natural  drain  of,  160. 
ditch  diverting  surface  waters,  306. 
channel  for,  306. 

(852) 


Index. 

(The  references  are  to  sections.) 

SURROUNDINGS: 

and  location,  15,  16. 
SWEARING : 

as  public  nuisance,  414. 
SWINE  STYE: 

action  on  case,  34. 
SWITCHES: 

costructed  in  highway,  247. 

See  Railboad. 

TAN-FATT: 

action  on  case,  34. 
TANKS: 

for  storage  of  oil,  etc,  387. 

for  coal  oil  and  gasoline,  location  of  important,  388. 
TANNERY: 

when  no  prescriptive  right  to  deposit  bark  from,  in  a  stream,  57. 

smells  from,  a  nuisance,  99. 

though  business  lawful  smells  from,  a  nuisance,  161. 
TELEGRAPH: 

poles  and  wires  for,  on  highway,  212. 

poles  in  highway  not  a  nuisance,  258. 
TELEPHONE : 

poles  and  wires  for,  on  highway,  212. 

pole  not  a  nuisance  where  erection  authorized  by  State,  67. 

in  highway  not  a  nuisance,  258. 

a  nuisance  at  common  law,  258,  note. 

removal  of,  by  individual,  371. 
TEMPORARY  INJUNCTION: 

to  restrain  shooting  gallery,  "  tonophone  "  and  "  orchestrion,"  426. 

against  oil  wells,  388. 
TEMPORARY  NUISANCE,  24. 
TENANT: 

right  to  recover  for  nuisance  affecting  highway  on  which  premises  abut, 
218,  note. 

liability  for  ice  and  snow  falling  from  roof  of  building,  237. 

joinder  with  owners,  443. 

need  not  join  his  co-tenant  in  suit,  445. 

by  entirety;   husband  need  not  join  wife  to  sue,  445. 

for  life;  rental  value;  additional  damages,  502. 
See  Landlord,  Lease. 
TENEMENT  HOUSE: 

thickly  inhabited  during  contagious  disease,  397. 
TENEMENTS: 

right  of  municipality  to  remove,  349. 

right  of  municipality  to  destroy,  350. 

(853) 


Index. 

(The  references  are  to  sections.) 

TEST  OF  NUISANCE: 

may  not  be  public  though  it  may  injure  many  persons,  o. 

THAMES: 

deposit  of  sewage  in  river  Thames,  288. 

THEATRE : 

disorderly  and  disreputable,  restrained,  409. 
See  Playhouses. 

TTTT^1  ATRICAL : 

manager  not  liable;   Mrs.  Warren's  profession,  475. 

THISTLES: 

no  obligation  to  cut,  44. 

See  Weeds. 

THRESHING  MACHINE : 

in  highway  not  nuisance  per  se,  256. 
TIDAL  CHAMBER: 

See  Sewebs. 

TIDAL  SEWER: 

See  Sewebs. 

TIDAL  WATERS: 

See  Watebs. 

TIDE  WATERS: 

See  Navigable  Watebs,  Watebs. 

TIN-BOUNDERS: 

rights  of,  to  waters,  328,  note. 
TIPPLING  HOUSE: 

civil  action  by  district  attorney,  437. 
TITLE : 

unnecessary;  action  by  private  person,  422,  note. 

action  on  case  by  party  in  possession  only,  444,  note. 

proof  of,  not  necessitated  by  allegation  of  ownership,  444,  note. 

subsequent  holder  of;   notice  to  abate,  454-458. 
TOBACCO  DRY  HOUSE: 

noisome  smells  from,  158. 
TOLL  GATE: 

a  nuisance  if  no  lawful  authority  for,  257. 
TOLL  HOUSE: 

abatement  of.  by  individual  as  a  nuisance,  371. 

TOLLS : 

collected  from  public  road;  injunction  lies  by  prosecuting  officer,  438. 

TOMB: 

erected  on  one's  own  land,  2,  note;   9,  note, 
may  be  nuisance,  393. 

See  Bueials,  Cemetebies. 

TONOPHONE: 

private  action;  public  nuisance,  426. 

(854) 


Index. 

(The  references  are  to  sections.) 

TORT: 

nuisance  defined  as  a,  11. 
TOWN: 

not  liable  for  water  breaking  through  flume,  277. 

liability  for  sewage  disposal,  285. 

no  power  to  dig  ditches  over  another's  land,  307. 

may  sue  for  injury  to  highway,  439. 

when  may  not  sue  in  equity,  439. 

may  have  equitable  relief  or  remedy,  439. 

See  Municipal,  Municipality,  Quasi-Municipal.    - 
TOWN  COUNCIL: 

disqualification  of;   equity,  449,  note. 

when  indictable,  449,  note. 
TOWNS  IMPROVEMENT  CLAUSES  ACT,  291. 
TRACKS  of  railroad  in  streets. 

See  Highways. 
TRADE  OR  BUSINESS: 

generally,  85. 

offensive;   Massachusetts  statute,  4,  note. 

noxious  trade  injuring  vegetable  life;  a  nuisance,  26. 

of  a  delicate  nature,  26. 

producing  noxious  vapors  and  gases,  26. 

not  a  nuisance  originally;  effect  of  development  of  locality,  54. 

offensive  trade  when  an  indictable  nuisance,  414. 

when  no  prescriptive  right  to  carry  on,  57. 

effect  of  mere  recognition  by  statute  of,  77. 

power  of  legislature  to  regulate,  81. 

construction  of  penal  statute  prohibting,  81,  note. 

where  vibrations,  smoke  or  soot  caused  by,  85. 

liability  of  individual  to  indictment  where  a  nuisance,  85. 

whether  a  nuisance  a  question  of  fact,  85. 

banking  operations  as  a  nuisance,  85. 

when  damages  for  a  permanent  injury  not  recoverable,  85. 

right  of  person  to  carry  on,  85. 

waste  from  canning  factory,  85. 

electric  pumping  station  a  nuisance,  85. 

where  a  nuisance  per  se,  85. 

nuisance  to  others  in  same  building,  85. 

liability  of  person  to  individual  where  a  nuisance,  85. 

not  a  nuisance  because  of  injury  to  exceptionally  delicate  trade,  85. 

evidence  on  question  of  whether  a  mill  is  a  nuisance,  86. 

evidence  upon  question  whether  factory  a  nuisance,  86. 

evidence  upon  question  of  whether  a  nuisance,  86. 

may  be  a  nuisance  though  not  endangering  health,  87. 

injury  must  be  substantial  to  be  a  nuisance,  87. 

smoke  from,  no  defense  that  business  carefully  conducted,  89. 

(855) 


Index. 

(The  references  are  to  sections.) 

TRADE  OR  BUSINESS— Continued, 
duty  as  to  use  of  machinery,  89. 

that  premises  kept  as  clean  as  possible  no  defense,  to  indictment,  89. 
that  it  causes  least  possible  annoyance  is  no  defense,  89. 
duty  as  to  care  and  use  of  appliances.  89. 
noxious  smells  from,  reasonable  care  no  defense,  89. 
effect  of  decree  ordering  certain  things  to  be  done  to  avoid  nuisance,  90. 
where  smell  from  market  can  be  avoided,  90. 
where  nuisance  from  laundry  can  be  avoided,  90. 
where  nuisance  can  be  avoided,  90. 
where  nuisance  from  smokestack  can  be  avoided,  90. 
where  nuisance  obviated  after  action  commenced,  91. 
negligence  as  an  element,  92. 

effect  on  persons  of  ordinary  sensibility  the  test,  93. 
intention  does  not  affect,  94. 

smoke  or  soot  form,  a  nuisance  in  certain  locality,  95. 
mill  a  nuisance  by  reason  of  locality,  95. 
effect  of  locality ;   convenient  place,  95. 
may  be  nuisance  from  location,  95.  96. 
finishing  boilers  in  compact  part  of  city,  96. 
annoyances  of  city  life,  96. 

effect  of  living  in  manufacturing  part  of  city,  96. 
glass  factory  adjacent  to  hotel  a  nuisance,  96. 
effect  of  living  in  city,  96. 

annoyances  in  excess  of  those  from  ordinary  use  of  property  in  manufac- 
turing locality,  96. 
cement  works  in  manufacturing  part  of  city,  96. 
soap  boiling  establishment  in  city,  96. 
change  in  charcater  of  locality;   coming  into  nuisance,  97. 

change  in  character  of  locality  from  residence  to  business  or  trade,  98. 

smells  from  «i  tannery  a  nuisance.  99. 

not  necessary  that  one  should  be  driven   from  his  dwelling  to  give  him  a 
right  of  action.  99. 

sic  utere  tuo  ut  alienum  non  laedas,  99. 

where  carried  on  at  unreasonable  hours,  99. 

noises  from,  a  nuisance  though  business  lawful,  99. 

where  lawful  not  a  nuisance  per  se,  99. 

fact  that  lawful  is  immaterial,  99. 

development  of  natural  resources  on  one's  land,  100. 

manufacture  of  vitrified  brick  from  shale  on  one's  premises,  100. 

though  nuisance  does  not  render  building  such,  100. 

operation  cf  coal  mines,  100. 

injunction  against  proposed  business,  102. 

injunction  against  erection  of  mill  refused,  103. 

injunction  against  erection  of  building  for,  103. 

nuisance  maintained  in  another  town  where  it  is  not  complained  of,  104. 

(856) 


Index. 

(The  references  are  to  sections.) 

TRADE  OR  BUSINESS— Continued, 
show  case  in  front  of  store,  105. 

statute  prohibiting  malicious  erection  of    structure  construed,  105. 
bakeries,  106. 
blacksmith  shop,  107. 
blasting,  108. 
bowling  alleys,  109. 
breweries  and  distilleries,  110. 
lime  kilns,  111. 
brick  kilns,   111. 
lumber  kilns,  111. 
coke  ovens,   112. 
cotton  gins,  113. 

electric  light  or  power  plant,  114. 
exhibitions  and  playhouses,  115. 
fat  and  bone  boiling  establishments,  116. 
ferries,  117. 

fertilizer  factories,  118. 
foundries,   119. 
gas  works,   120. 
ice  house,  121. 
laundries,  122. 
merry-go-round,  123. 
quarries,  124. 
shooting  gallery,  125. 

slaughter  house  prima  facie  a  nuisance,  126. 
slaughter  houses,  126-131. 

slaughter  house  a  nuisance  by  reason  of  location  or  operation,  127. 
subsequent  development  of  locality  after  location  of  slaughter  house,  128. 
health  need  not  be  endangered  by  slaughter  house,  129. 
defense  to  indictment  for,   130. 
defense  to  action  to  enjoin  slaughter  house,  133. 
smelting  works,  132. 
steel  furnaces,  133. 
undertakers,  134. 

that  noisome  smells  unavoidable  no  defense,  157. 
noisome  smells  from,  157. 

though  lawful  smells  from  may  be  a  nuisance,  161. 
right  to  injunction  in  case  of  noisome  smells  from,  163. 
noise  from  must  be  substantial  to  be  a  nuisance,  182. 
noises  from  conduct  of,  in  manufacturing  locality,  184. 
noises  from,  where  legalized,  185. 
where  legalized  and  -no  locality  designated,  186. 
though  lawful  no  defense  for  nuisance  by  loading  and  unloading  goods 

on  highway,  224. 
power  of  municipality  to  declare  it  a  nuisance,  346,  note. 

(857) 


Index. 

(The  references  are  to  sections.) 

TRADE  OR  BUSINESS— Continued. 

factory  where  a  nuisance  to  health  may  be  abated  by  municipality,  348. 
that  business  a  nuisance  no  defense  for  destruction  of  building  by  a  mob, 
350. 
See   Business    Man r factory.    Noises    and    Yii-.rations,    Noisome    Smells, 

Smoke,  Fumes  (  nd  Gases. 
TREES: 

along  boundary  line  causing  injury  by  shade,  37. 

along  boundary  line,  injunction,  411. 

injury  to,  from  fertilizer  factory,   118. 

injury  to,  by  smoke  from  brick  kiln,  145. 

right  of  municipality  to  remove  trees  from  highway,  252. 

conclusiveness  of  municipal   authorities'  determination  whether  nuisance, 

252. 
may  become  a  nuisance  by  development  of  locality.  252. 
in  highway  as  ;i  nuisance,  2.VJ. 
not  necessarily  a  nuisance  in  highway.  2.V2. 
in  highway;   right  of  municipal  authorities  to  destroy,  253. 
right  of  individual  to  abate  nuisance  consisting  of  overhanging  branches, 

375. 
branches  of,  overhanging  land,  411. 
TRESPASS,  361. 

nuisance  distinguished  from,  17. 
as  remedy,  17,  note. 

not  obligated  to  commit,  in  order  to  lessen  damages,  45. 
TRESPASSERS: 

owner  not  liable  to,  382. 
TRUSTEES: 

action  by.   for  disturbing  religious  worship.  442. 
TUGBOATS: 

ordinance   regulating   smoke   from,    not  violation    of   commerce  clause  of 
constitution,  153. 
TUNNEL: 

used  by  railroad;   smoke  from  opening  in,  147. 
constructed  so  as  to  diminish  waters  of  stream,  314. 
TURNPIKES: 

See  Highways,  Tollgates. 
TURNTABLE: 

construction  of,  by  railroad,  75. 

See  Railboads. 
TYPHOID  BACILLUS: 

Chicago  drainage  case,  299. 

UBI  JUS  IBI  REMEDIUM,  39. 
ULTRA  VIRES : 

act  of  town  in  digging  ditches,  307. 

(858) 


Index. 

(The  references  are  to  sections.) 

UNCOMFORTABLE : 

not  precise  definition,  19. 
UNDERTAKER: 

establishment,  9,  note. 

business  of,  not  a  nuisance  per  se,  134 

one  claiming  a  nuisance  has  burden  of  proving,  134. 

must  so  conduct  business  as  not  to  injure  occupants  of  adjoining  dwell- 
ings,   134. 
UNITED  STATES: 

when  obstruction  of  navigable  waters  not  offense  against,  273. 
UNLOADING: 

of  goods,  223,  224,  225,  226. 

See  Highways. 
UNNAVIGABLE  RIVER: 

obstructed,  2,  note. 

See  Waters. 
URBAN  DISTRICT  COUNCIL: 

abatement  of  nuisance  by,  372,  note. 
URINAL: 

nuisance;  removal  act  includes,  4. 
URINATING: 

in  spring,  311. 
UTAH: 

statutes;   definition  nuisance,  4,  note. 

statute:   definition  public  nuisance,  7,  note. 

VALUE : 

of  property  impaired;   proof  of  damages,  2,  note. 

of  property,  must   be  substantially  impaired,  2. 

depreciation  in;   damages,  489. 

usable  value;    rental  value;   damages,  490-492. 

rental   value;   life  tenants,   502. 

See  Damages. 
VAPORS: 

noxious;   injury  substantial,  not  trifling,  22. 

and  gases  injuring  ornamental  property,  26. 
VAULT,  405. 

right  to  maintain,  under  sidewalk,  52. 

under  sidewalks,  231. 

effect  of  license  to  make,  in  sidewalk,  232. 
VEGETATION : 

injury  to,  by  operation  of  smelting  works,  132. 
VEHICLES: 

collection  of,  in  highway  as  a  nuisance,  52. 
VENDEE : 

See  Sale. 
(859) 


Index. 

(The  references  are  to  sections.) 

VENDOR: 

See  Sale. 

VESSEL: 

destruction  of;  common  nuisance,  6,  note, 
city  not  liable  for  non-removal  of  sunken  vessel,  273. 
sunken,  a  nuisance,  273. 
VESTED  RIGHT: 

violated,  19. 
VIBRATIONS: 

from  trade  or  business  a  nuisance,  85. 

from  gas  plant,  176. 

from  operation  of  electric  light  plant,  176. 

See  Noises,  Jars  and  Vibrations. 
VICIOUS  ANIMALS: 

See  Animals. 

VIEW: 

easement  of,  36,  37. 

obstruction  of,  by  building  encroaching  on  highway,  234. 
See  Easement. 
VILLAGE : 

ordinance  as  to  storage  of  dynamite  and  nitro-glycerine,  386,  note, 
right  of,  to  sue  in  equity.  439. 

Sec  Municipal,   Mi  mch-auty.  ordinance. 
VINDICTIVE    DAMAGES: 

See  Damages. 
VITRTFIED  BRICK: 

manufacturer  of,  from  shale  on  one's  own  premises,  100. 

WAGONS: 

standing  in  street  causing  special  injury  to  individual,  220. 

WAITING  ROOM : 

in  street  authorized  by  municipality,  78. 
WAIVER: 

of  irregularities  in  taking  land  by  accepting  damages,  505. 
WALL: 

projecting,  4,  note. 

projecting  or  overhanging,  remed}-,  404. 

municipal  liability  for  nuisance  caused  by,  355. 

liability  of  municipality  for  failure  to  remove,  357. 

municipality  not  liable  where  wall  of  burned  building  falls  on  adjoining 
premises,  358. 

See  Modern  Walls. 
WAR: 

approval  of  secretary  of,  as  to  bridge,  274. 

(S60) 


(The  references  are  to  sections.) 

WAREHOUSE: 

part  of  Brooklyn  bridge;  lessee;  suit  to  enjoin,  445,  note. 

for  storage  of  gasoline,  etc.,  387. 
WARES : 

exposure  of,  for  sale  on  sidewalk,  227 
WARREN,  .MRS.: 

See  Mrs.  Wabben. 
WASHINGTON: 

code;  definition  nuisance,  4,  note;   10,  note. 

sodes  and  statutes;  definition  public  nuisance   7    note 
WATER  BOX:  ' 

construction  of,  in  highway,  258. 
WATER  CLOSETS,  405,  406. 

See  Pbivy. 
WATER  COMMISSIONERS: 

See  Boabd  of. 
WATER  COURSE: 

nuisance,  removal  act  includes,  4 
WATERS: 

pollution  of,  and   injury  to  fish,  4,  note. 

navigable  river  obstructed,  2,  note. 

injury  to  fish  by  pollution  of,  4,  note. 

diversion  and  appropriation  of,  4,  note. 

befouling  public  stream,  4.  note. 

befouling  by  corporation,  4,  note. 

pollution  of,  4,  note. 

diversion  and  appropriation  of.  4,  note. 

pollution  of  waters  of  creek,  4,  note. 

obstruction  of  floatable  stream,  5,  note. 

injury  of  right  to  navigate  is  public  nuisance,  5,  note. 

crib  or  pier  in  public  river,  5,  note. 

diverting  water;   sic  utere,  etc.,  30. 

reasonable  care  to  exclude  filthy  water,  44. 

no  prescriptive  right  to  pollute,  53. 
jus  publicum  in  soil  under,  66. 
jus  privatum  of  king  in  soil  under,  66. 
owner  of  shore  may  abate  a  purpresture,  66. 

where  bridge  over  navigable  river  legalized  by  act  of  Congress,  67. 
where  construction  of  bridge  over  navigable  river  authorized,  70. 
setting  of  nets  in,  a  nuisance  by  statute,  83. 
riparian  rights  are  property  rights,  265. 
irrigation,  265. 
mining,  265. 

riparian  rights  generally,  265. 

priorities  under  irrigation  act  of  Colorado,  265,  note, 
amount  required  for  beneficial  use  limits  appropriator,  265,  note. 

(S01) 


Index. 

(The  references  are  to  sections.) 

WATERS— Continued. 

relative  rights  for  irrigation,  265,  note. 

rights  of  prior  appropriators,  265-271,  277. 

right  to  have  water  flow  in  natural  channel,  266. 

right  of  owner  of  soil  to  use  of,  266. 

reasonable  use  of,  right  to  have,  266,  267. 

riparian  rights;  general  rule;  qualifications;  reasonable  use,  266,  267. 

riparian  rights;  ebb  and  flow  of  tide,  268. 

reasonable  use;  prior  occupation,  268. 

riparian  rights;  reasonable  and  unreasonable  use;  convenience  or  neces- 
sity as  to  locality;  pollution  of  waters,  269. 

relative  rights  of  upper  and  lower  riparian  proprietors,  269. 

riparian  rights;  qualifications  of  rule;  mining  and  irrigation  generally, 
270. 

riparian  rights;  artificial  water  course,  271. 

rights  as  to  navigable  waters  generally.  -72. 

when  stream  navigable  in   legal   sense,  -72.  note. 

navigable  river  is  public  highway  and  subject  to  like  general  rules,  272. 

right  of  State  to  obstruct  navigation,  27.".. 

"concurrent  jurisdiction,"  27:;. 

embankments  and   buildings  along  river,  27::. 

butts  or  heaps  of  stone  in  navigable  river,  273. 

temporary  obstruction  of  navigable  stream  not  a  nuisance,  273. 

question  of  navigability   is  for  jury.  273. 

what  is  test  of  navigability,  273. 

control  of  navigable  waters  is  in  public  and  not  in  shore  owner,  273. 

encroachment  on  banks  of  navigable  river  nol  necessarily  a  nuisance,  273. 

boom  for  logs  a  nuisance.  273. 

stakes  driven  s<>  as  to  obstruct   navigation,  a   nuisance.   273. 

sunken  vessel  a  nuisance,  273. 

shanty  or  jo-boat  below  high   water  mark  a   nuisance.  273. 

floating  storehouse  a  nuisance,  273. 

bridge  constructed  without  authority  a  nuisance.  273. 

obstruction  of  navigation,  when  a  nuisance,  273. 

nets  in  channel  a  nuisance,  273. 

floating  elevator  a  nuisance,  273. 

obstruction  of  navigable  water-.  273. 

meaning  of  "navigable  waters  of  the  United  States,"  273,  note. 

channel  of  slough  of  sea  may  be  navigable,  273,  note. 

sea  adjoining  Xew  York  and  New  Jersey,  rights  therein,  273,  note. 

power  of  Congress  over  navigable  waters,  274. 

power  to  erect  bridge  implies  power  to  repair.  274. 

power  of  state  as  to  bridges  over  navigable  waters,  274. 

bridges  over  navigable  waters,  274. 

piers  and  wharves  extending   into   inland  navigable  lake,   275. 

docks,  wharves,  piers  and  like  structures,  275. 

(862) 


Index. 

(The  references  are  to  sections.) 

WATERS— Conti  nued. 

tidal  and  non-tidal  waters;   erection  of  jetty,  275. 
breakwater  when  a  nuisance,  275. 

fishing  and  fishing  nets;  pollution  or  obstruction  of  waters,  276. 
garbage   in   lake,  injuring  fishing  nets,  27G. 
statute  for  preservation  of  fish,  276. 
dam  obstructing  fish,  276. 

indictment  against  obstruction  of  fish  in  rivers,  276. 
pollution  of,  to  injury  of  fishery,  276. 

when  pollution  of  stream  by  places  running  nor  restrained,  277. 
deposits  of  mining  debris;   right  of  county  to  relief,  277. 
ditch,  diverting  water  used   for  placer  mining,  277. 
navigation  impeded  by  hydraulic  mining,  277. 
ditch  and  reservoir,  when  not  a  nuisance,  277. 
pollution   of,   by   colliery,   277. 

destruction   of,   use   for   domestic   purposes  by   running  debris,   277. 
pollution  of;    mining  debris   and   deposits,   277. 
unfit  for  domestic  use  by  ore  washings,  277. 
polluted  by  washing  ore,  277. 
made  unfit  for  domestic  uses  by  colliery,  277. 
fish  destroyed  by  pollution  of  waters,  277. 
pollution  of,  destroying  ice  pond,  277. 

taking  private  property  by  polluting  water  or  overflowing  land,  278. 
appropriation  of  stream  for  sewerage;  assessment  of  damages,  278. 
disease  germs  from  privy,  polluting  water,  283. 
discharge  of  sewage  into  tidal  waters,  2S5. 
pollution  of,  by  sewage,  284,  285,  286. 
pollution  of  generally;   sewage;   English  decisions,  288. 
statutory  condition  precedent;  sewer  obstructing  navigable  waters,  295. 
pollution  of  by  sewage  or  otherwise;   purifying,  disinfecting  and  deodor- 
izing, 297. 
impure,  discharged  into  street,  302. 
pollution  of;  manufacturing  processes,  303. 
impurity  from  natural   or  artificial   causes,   303. 
of  mine  discharged  in  stream,  pollution,  303,  note, 
polluting   water    supply   of   city,    304. 
ponds,  pools,  stagnant  waters,  305. 

filling  up  and  draining  land  covered  with  stagnant  water,  305. 
power  of  city  to  alter  navigable  rivers,  point  of  discharge,  306. 
drains,    ditches,    channels,    canals,    etc.;    diversion    of    water,    pollution, 

damages,  306,  307. 
expert  on  scientific  evidence  as  to  pollution  and  effect  thereof,   309. 
degree,  nature  and  character  of  pollution,  generally,  310. 
character  of  odors  and  effect  of  discharge,  pollution.   310. 
pollution  of;  general  decisions,  311. 

grantee  of  government  no  greater  right  than  others  to  pollute  waters,  311. 
cattle  befouling  stream,  311. 

(863) 


Index. 

(The  references  are  to  sections.) 

WATERS — Continued. 

diversion  or  obstruction  of,  generally.  312. 

obstruction  of  water  course  by  city,  it  is  liable,  312. 

mere  obstruction  of  waterway  not  necessarily  a   nuisance,  312. 

riparian  owners  right  to  divert,   312. 

overflowing,  flooding  or  casting  water  upon  land,  generally,  313. 

percolations;   subterranean  waters,  314. 

artificial   erections,   embankments,   etc.,   railroad  erections,   317. 

mills,   mill    races   and   streams,   mill    sites   and    mill   owners,    rebuilding 

mill,  318. 
dams,  319,  320. 
prescription,  328. 
rights  of  tin-bounders,  328,  note. 

riparian  rights  as  property  and  compensation  for  use.  320,   appendix   A. 
bill  of  rights,  riparian  rights,  329,  appendix   A. 
abatement  by  individual  of  embankment  affecting  flowage  of,  in  natural 

channels,  375. 
abatement  by  individual  of  nuisance  consisting  of  refluent  waters,  375. 
abatement  by  individual  of.  nuisance  caused  by  pollution  of,  378. 
percolation  polluting  water,   382, 

pollution  of  stream  by   cemetery  association,  393. 

and  refuse  discharged  on  land,  396. 

pollution   of;    injunction,   410. 

navigable,  obstructed:   indictment  or  information  for.  414. 

diverted,  which  run  machinery;   injunction.  416. 

equitable   relief   where   drain  or   channel    diverts   waters,   416. 

of  creek  polluted;    remedy   in  equity,  416. 

private  action,   public  nuisance;    navigable   waters,  433 

tide  water  basin   obstructed;    private   action.   436. 

pollution  of;    liability  of   supervisors,   449.   note. 

pollution  by  sewage.    See  Sewerage. 

pollution   of,   from   other   sources,   477. 

pollution  of  by  plaintiff,  480. 

potable  by  cattle  and  inhabitable  by  fish;   no  defense  for  pollution,  482. 
See    Bridge,   Canal,    Channels,    Ditches,    Drains,    Equity,    Injunction, 

Irrigation,  Mimm;,  Navigable  Waters,  Navigation,  Ponds.  Sewerage, 

Sewers.  Stagnant  Water,  Stream 
WATER  STATION : 

municipality  not  liable  for   failure  to  abate  as  a   nuisance,  358. 
WATER  TANKS : 

where  erected  in  street  under  municipal  authority,  79. 
WATERWAY : 

See  Waters. 
WATERWORKS : 

where  location  oi,  not  designated  by  statute,  76. 

(864) 


Index. 

(The  references  are  to  sections.) 

WATERWORKS  CLAUSES  ACT: 

fouling  water,  288. 

WATERWORKS  COMPANY'S: 

reservoir  fouled,  288. 
WAYS: 

private  way,  right  of  way,  408. 

See  Private  Way. 
WEAR: 

See  Wtiek. 
WEEDS: 

ordinance  as  to,  construed,  340. 

when  no  injunction,  411. 

See  Thistles. 
WEIR: 

See  Wier. 
WELL: 

polluted,  306. 

polluted  by  percolations,  382. 

sunk  which  lowers  waters  of  pond,  305. 
WESSON  v.  WASHBURN: 

private  action,  public  nuisance,  427. 
WHARF: 

when  may  be  abated  or  enjoined,  410. 

See  Docks,  Piers,  Waters,  Wharves. 
WHARFAGE: 

injured;    private   action,   436. 
WHARVES:      275. 

when  not  a  purpresture,  64. 

right  of  riparian  owner  to  build,  65. 

distance  to  which  may  be   extended  into  water,   65. 

right  of  riparian  owner  to  build  below  low  water  mark,  65. 

application  of  term  purpresture  to,  65. 

recognition  by  state  of  right  to  construct,  65. 

must  not  interfere  with   navigation,  65. 

qualification   of   right  to  build,  275,  note. 

See  Docks,  Piers,  Waters,  Wharf. 
WHEELING  BRIDGE: 

case  considered,  299. 
WHISTLES : 

blowing  of  on  trains  not  a  nuisance,  71. 

of  factories  not  a  nuisance  per  se,  180. 

of   factories,  when  a  nuisance,    180. 
WIER: 

ditch  connecting  with,  278. 

(865) 


Index. 

(The  references  are  to  sections.) 

WIFE: 

and  husband,  tenants  by  entirety  need  not  join  in  suit,  445. 

need  not  oin  heirs  of  deceased  husband  in  suit.  445. 

of  tenant  cannot  sue  after  his  decease,  445. 
WILD  ANIMALS: 

obstruction  of  highway  by  exhibition  of,  255. 
WINDOWS: 

See   Light   and   Air. 

WIRES: 

for  telegraph,  telephone  and  electric  light  above  surface  of  highway,  212. 

in   highway  not  properly  insulated  a  nuisance,  258. 

removal  of  by  municipality,  372. 

effect    of   revocation    of   license   for    372. 

municipality  may  prohibit  maintenance  of  on  roofs  of  buildings,  339. 
WOODEN    BUILDINGS: 

private   action,   public   nuisance,   435. 
WOODEN    STATION: 

on  elevated   railway:    private  action,  public  nuisance,  436. 
WOODEN  WALLS: 

private  action,   public   nuisance,  435. 
WOOD  HOUSE: 

darkening  windows,  37. 
WORKHOUSE: 

sewer    from,    280. 
WRECK: 

in  river;   private  action,  public  nuisance,  436. 
WRIT: 

of  prohibition  against  trial  of  one  charged  with  public  nuisance,  4,  note. 


(Total  number  of  pages,  972.), 


(866)1 


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